Filed Pursuant to Rule 424(b)(3) and Rule 424(c)
Registration Statement No. 333-285728
April 14, 2026
PROSPECTUS SUPPLEMENT NO. 19
DEVVSTREAM CORP.
UP TO 114,968,270 COMMON SHARES
This prospectus supplement amends the prospectus dated March 12, 2025 (as supplemented to date, the “Prospectus”) of DevvStream Corp., a company existing under the Laws of the
Province of Alberta, Canada (the “Company”), which forms a part of the Company’s Registration Statement on Form S-1 (No. 333-285728). This prospectus supplement is being filed to update and supplement the information included or incorporated by
reference in the Prospectus with the information contained in the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission (the “SEC”) on April 14, 2026. This prospectus supplement should be read in conjunction with
the Prospectus, which is to be delivered with this prospectus supplement.
Shares of our Common Shares are listed on the Nasdaq Stock Market LLC (“Nasdaq”) under the symbol “DEVS”. On April 13, 2026, the closing price of our Common Shares was $0.95.
Investing in the Company’s Common Shares involves risks. See “Risk Factors” beginning on page 9 of the Prospectus and under similar headings in any amendments or
supplements to the Prospectus.
Neither the SEC nor any other regulatory body has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
The date of this Prospectus Supplement No. 19 is April 14, 2026.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 13, 2026
DEVVSTREAM CORP.
(Exact name of registrant as specified in its charter)
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Alberta, Canada
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001-40977
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86-2433757
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(State or other jurisdiction of incorporation or organization)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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2108 N St., Suite 4254
Sacramento, California
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95816
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(Address of principal executive offices)
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(Zip Code)
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(647) 689-6041
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of
the following provisions:
| ☒ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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| ☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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| ☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange on
which registered
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Common Shares
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DEVS
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The Nasdaq Stock Market LLC
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of
the Securities Exchange Act of 1934.
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 |
Entry into a Material Definitive Agreement.
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Transactions
As previously disclosed in its Current Report on Form 8-K filed with the Securities and Exchange Commission on January 26, 2026, DevvStream
Corp., an Alberta corporation (the “Company”), entered into a transaction term sheet, dated January 26, 2026, with XCF Global, Inc., a Delaware corporation (“XCF”), and Southern Energy Renewables Inc., a Louisiana corporation (“Southern”),
setting forth the principal terms and conditions of a proposed business combination.
Following the execution of the term sheet, on April 13, 2026, the Company entered into a definitive Business Combination Agreement (as may be
amended, supplemented or otherwise modified from time to time, the “BCA” and the transactions contemplated thereby, collectively, the “Transactions”), by and among the Company, XCF, Southern, DevvStream Merger Sub Inc., a Delaware corporation
and a newly-formed wholly-owned subsidiary of XCF (“DevvStream Merger Sub”), and Southern Merger Sub Inc., a Delaware corporation and a newly-formed wholly-owned subsidiary of XCF (“Southern Merger Sub”). The terms of the Transactions, which
contain customary representations and warranties, covenants and closing conditions, are summarized below. The Transactions remain subject to customary closing conditions as well as the other terms, closing conditions and termination events
(including failure to timely receive the Company Fairness Opinion and the XCF Fairness Opinion) set forth in the BCA. Capitalized terms used in this Current Report on Form 8-K but not otherwise defined herein have the meanings given to them
in the BCA.
Structure of the Transactions
The Transactions are structured as follows:
| (a) |
prior to the Effective Time of the Mergers, the Company will migrate to and domesticate as a Delaware corporation (the “Domestication”);
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| (b) |
at the Effective Time, Southern Merger Sub will merge with and into Southern with Southern surviving the merger as a wholly-owned subsidiary of XCF (the “Southern Merger”), pursuant to which existing
equity in Southern will be exchanged for an aggregate number of XCF Common Shares equal to the Southern Consideration Shares; and
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| (a) |
at the Effective Time, DevvStream Merger Sub will merge with and into DevvStream with DevvStream surviving the merger as a wholly-owned subsidiary of XCF (the “DevvStream Merger” and, together with the
Southern Merger, the “Mergers”), pursuant to which each Company share issued and outstanding immediately prior to the Effective Time (and following the Domestication) will be automatically cancelled and extinguished and converted into
the right to receive a number of shares of XCF Common Stock equal to the DevvStream Per Share Consideration.
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Treatment of Company Equity Awards
Pursuant to the BCA, outstanding Company Warrants, Company Options, Company RSUs, and Company Convertible Notes will be assumed by XCF and
automatically converted into equivalent rights exercisable for or convertible into XCF Common Shares, with the number of shares and exercise or conversion prices adjusted based on the Company Per Share Consideration.
Proxy Statement and Stockholder Meeting
As promptly as practicable after the execution of the BCA, XCF will prepare and file with the SEC a registration statement on Form S-4 (or
other appropriate form) in connection with the registration under the Securities Act of the XCF Common Shares to be issued in the Mergers (the “Registration Statement”), which will also contain the proxy statement of XCF and a circular for
the Company. The Company and XCF will convene special meetings of their respective shareholders to consider the Transactions.
Representations, Warranties and Covenants
The BCA contains customary representations and warranties of the Company, XCF, Southern, and the Merger Subs relating to, among other things,
their ability and authority to enter into the BCA and their capitalization and operations. The parties have also agreed to customary covenants including, without limitation, the operation of their respective businesses during the interim
period prior to Closing, requirements regarding alternative transaction proposals, and cooperation in preparing the Registration Statement and obtaining necessary regulatory approvals.
Conditions to Closing
General Conditions
The obligation of the parties to consummate the Mergers is conditioned on, among other things, the satisfaction or waiver of the following
mutual conditions: (a) the stockholders of XCF have authorized and adopted the XCF Resolutions; (b) the shareholders of the Company have passed the DevvStream Resolutions; (c) the absence of any Law or Order that makes the Mergers or the
Domestication illegal or otherwise prohibits or enjoins the parties from consummating the same; (d) the parties have received the requisite regulatory approvals; (e) the receipt of applicable stock exchange listing approvals; (f) the
Registration Statement shall have been declared effective by the SEC and no stop order shall be in effect; (g) the actions required to establish the post-closing board of directors and executive officers have been taken; (h) the Domestication
shall have been completed; and (i) if legally available, dissent rights have not been exercised with respect to more than 3% of the issued and outstanding XCF Common Stock or Company Shares. The approval of the Southern Shareholders is not a
condition to consummate the Mergers because the Southern Shareholders authorized and approved the Mergers prior to Southern executing the BCA.
XCF Conditions to Closing
The obligations of XCF to consummate the Mergers are further conditioned on, among other things, the satisfaction or waiver by XCF of the
following conditions: (a) the accuracy of the representations and warranties of Southern and DevvStream contained in the BCA (generally subject to certain customary materiality and Material Adverse Effect qualifiers); (b) the performance by
Southern and the Company of their respective agreements and covenants, in all material respects, between signing and closing; (c) the absence of a Southern Material Adverse Effect or a Company Material Adverse Effect; (d) Southern shall have
caused the Plant Conversion Funding to have occurred; (e) Southern shall have been approved by the State of Louisiana to issue bonds in an aggregate principal amount of at least $400,000,000, with related public announcements having occurred,
and completed an engagement with an investment bank to sell the bond offering; (f) the aggregate amount of Southern’s unrestricted cash and cash equivalents plus all Plant Conversion Funding funded to XCF prior to the Effective Time shall
equal at least $10,000,000; (g) EEME Energy SPV I LLC shall have beneficial ownership of at least a majority of the outstanding Southern Shares; (h) Southern shall have entered into the SAF Offtake Agreement and one or more European Offtake
Agreements; and (i) delivery to XCF of customary officer certificates and FIRPTA tax certificates from Southern and the Company.
Southern Conditions to Closing
The obligations of Southern to consummate the Mergers are further conditioned on, among other things, the satisfaction or waiver by Southern
of the following conditions: (a) the accuracy of the representations and warranties of XCF, the Merger Subs, and DevvStream contained in the BCA (generally subject to certain customary materiality and Material Adverse Effect qualifiers); (b)
the performance by XCF, the Merger Subs, and the Company of their respective agreements and covenants, in all material respects, between signing and closing; (c) the absence of a Company Material Adverse Effect, Merger Sub Material Adverse
Effect, or DevvStream Material Adverse Effect; (d) XCF shall have entered into the SAF Offtake Agreement and made a public announcement regarding its execution; and (e) delivery to Southern of customary officer certificates from the Company,
the Merger Subs, and XCF.
Company Conditions to Closing
The obligations of the Company to consummate the Mergers are further conditioned on, among other things, the satisfaction or waiver by the
Company of the following conditions: (a) the accuracy of the representations and warranties of XCF, the Merger Subs, and Southern contained in the BCA (generally subject to certain customary materiality and Material Adverse Effect
qualifiers); (b) the performance by XCF, the Merger Subs, and Southern of their respective agreements and covenants, in all material respects, between signing and closing; (c) the absence of a Company Material Adverse Effect, Merger Sub
Material Adverse Effect, or Southern Material Adverse Effect; (d) Southern shall have caused the Plant Conversion Funding to have occurred; (e) Southern shall have been approved by the State of Louisiana to issue bonds in an aggregate
principal amount of at least $400,000,000, with related public announcements having occurred, and completed an engagement with an investment bank to sell the bond offering; (f) XCF and Southern shall have entered into the SAF Offtake
Agreement; (g) Southern shall have entered into one or more European Offtake Agreements; (h) the gross revenue of XCF for its blended fuel product shall exceed $1,000,000,000 on an annualized, go-forward basis by June 30, 2026, and annualized
EBITDA shall equal at least $100,000,000; (i) the aggregate amount of Southern’s unrestricted cash and cash equivalents plus certain previously funded cash shall equal at least $10,000,000; (j) EEME Energy SPV I LLC shall have beneficial
ownership of at least a majority of the outstanding Southern Shares; and (k) delivery to the Company of customary officer certificates from XCF, the Merger Subs, and Southern.
There can be no assurances that the closing conditions will be achieved or waived.
Termination
Termination Generally
The BCA contains certain termination rights, including, among others:
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termination by mutual written consent of Southern, XCF, and the Company;
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termination by any of Southern, XCF, or the Company if: (a) the requisite XCF Shareholders fail to approve the XCF Resolutions; (b) the requisite Company Shareholders fail to pass the Company
Resolutions; (c) Laws or Orders prohibit or enjoin the consummation of the Transactions that have become final and non-appealable; or (d) the Effective Time does not occur on or prior to the ten (10) month anniversary of the date of
the BCA (the “Outside Date”), subject to a one-time thirty (30)-day extension upon mutual written agreement;
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termination by XCF if: (a) Southern or the Company has an uncured material breach; (b) prior to the approval by the XCF Shareholders of the Mergers, XCF enters into a written agreement with respect to a
Superior Proposal; (c) the Company’s Board changes its recommendation in certain circumstances; (d) there has been a Southern Material Adverse Effect or DevvStream Material Adverse Effect that is not or cannot be cured; or (e) the XCF
Board and Special Committee do not receive the XCF Fairness Opinion within twenty (20) Business Days of the date of the BCA (provided the right is exercised within two Business Days after such period ends);
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termination by Southern if: (a) the Company, XCF, or the Merger Subs have an uncured material breach; (b) the XCF Board changes its recommendation in certain circumstances; or (c) the the Company’s
Board changes its recommendation in certain circumstances; and
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| • |
termination by the Company if: (a) XCF, Southern, or the Merger Subs have an uncured material breach; (b) prior to the approval by the Company’ Shareholders of the Mergers, the Company enters into a
written agreement with respect to a Superior Proposal; (c) the XCF Board changes its recommendation in certain circumstances; (d) there has been a XCF Material Adverse Effect or Southern Material Adverse Effect that is not or cannot
be cured; or (e) the DevvStream Board and Special Committee do not receive the Company Fairness Opinion within twenty (20) Business Days of the date of the BCA (provided the right is exercised within two Business Days after such
period ends).
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Termination Fees
The Company will owe a termination fee of $510,000 to XCF if (a) XCF or Southern terminates the BCA due to the Company changing its board
recommendation, (b) the Company terminates the BCA to enter into a Superior Proposal, or (c) within 12 months after termination of the BCA for certain reasons (such as a breach by the Company, failure to obtain DevvStream Shareholder
Approval, or reaching the Outside Date), the Company consummates or enters into a definitive agreement for an Acquisition Proposal that was made known prior to termination.
XCF will owe a termination fee of $510,000 to the Company and $1,190,000 to Southern if (a) the Company or Southern terminates the BCA due to
XCF changing its board recommendation, (b) XCF terminates the BCA to enter into a Superior Proposal, or (c) within 12 months after termination of the BCA for certain reasons (such as a breach by XCF, failure to obtain XCF Shareholder
Approval, or reaching the Outside Date), XCF consummates or enters into a definitive agreement for an Acquisition Proposal that was made known prior to termination.
The Parties acknowledge that no termination fee shall be owed if either of XCF or the Company validly terminate the BCA due to the failure to
the Company Fairness Opinion or the XCF Fairness Opinion, respectively, as provided in the BCA.
Fees and Expenses
Except as expressly provided in the BCA, each Party will bear its own expenses incurred in connection with the Transactions, whether or not
the Transactions are consummated. However, if the BCA is terminated because the requisite Company Shareholder Approval is not obtained, the Company is required to reimburse XCF for reasonable, documented expenses up to $170,000. Conversely,
if the BCA is terminated because the requisite XCF Shareholder Approval is not obtained, XCF is required to reimburse the Company for reasonable, documented expenses up to $170,000 and reimburse Southern for reasonable, documented expenses up
to $397,000. Transfer Taxes incurred in connection with the Transactions will be paid equally by the Parties.
Support & Lock-Up Agreements
In connection with signing the BCA, (i) the Company, Southern, XCF, and the XCF Core Securityholders entered into a Company Support &
Lock-Up Agreement, (ii) the Company, Southern, XCF, and the Company Core Securityholders entered into a Company Support & Lock-Up Agreement, and (iii) XCF, Southern, the Company, and the Southern Securityholders entered into a Southern
Support & Lock-Up Agreement (collectively, the “Support & Lock-Up Agreements”), each dated April 13, 2026.
Pursuant to the Support & Lock-Up Agreements, the respective securityholders agreed to vote any covered shares held by them in favor of
the Transactions and against any competing alternative transactions. Because the Company Core Securityholders and XCF Core Securityholders hold a sufficient number of voting shares to approve the Transactions on behalf of the Company and XCF,
respectively, the requisite shareholder approvals for the Company and XCF are ensured, provided that such securityholders comply with their voting obligations under the Support & Lock-Up Agreements. Additionally, the securityholders
agreed to certain transfer and lock-up restrictions, subject to customary exceptions for permitted transfers.
Asset Spin
Pursuant to the BCA, the Parties have agreed to use their commercially reasonable efforts to, if mutually desirable, agree on a reasonable
structure to spin-out or sell a newly formed, publicly listed holding company shell of DevvStream immediately following the Effective Time on commercially reasonable terms so long as such transaction does not (i) result in any adverse
economic, tax, or legal consequences to XCF or Southern, or (ii) cause any material delay in the consummation of the Transactions.
| Item 7.01 |
Regulation FD Disclosure.
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On April 14, 2026, the Company issued a press release announcing the execution of the BCA. The
press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
Additional Information and Where to Find It
In connection with the proposed transaction, among the Company, XCF, and Southern, XCF will prepare and file relevant materials with the
Securities and Exchange Commission (the “SEC”), including a registration statement on Form S-4 that will contain preliminary proxy statements of the Company and XCF that also constitutes a prospectus (the “Proxy Statements/Prospectus”). A
proxy statement is expected to be mailed to stockholders of the Company and XCF as of the record date to be established for voting on the proposed business combination transaction and other matters as described in the Proxy
Statements/Prospectus. The Company, XCF, and Southern may also file other documents with the SEC and Canadian securities regulatory authorities regarding the proposed transaction. This communication is not a substitute for any proxy
statement, registration statement or prospectus, or any other document that the Company, DevvStream, and Southern (as applicable) may file with the SEC or Canadian securities regulatory authorities in connection with the proposed transaction.
BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, INVESTORS AND SECURITY HOLDERS OF THE COMPANY OR DEVVSTREAM ARE URGED TO READ CAREFULLY AND IN THEIR ENTIRETY THE PROXY STATEMENTS/PROSPECTUS WHEN IT BECOMES AVAILABLE AND ANY OTHER RELEVANT
DOCUMENTS THAT ARE FILED OR WILL BE FILED BY THE COMPANY WITH THE SEC OR CANADIAN SECURITIES REGULATORY AUTHORITIES, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS, IN CONNECTION WITH THE PROPOSED TRANSACTION, WHEN THEY BECOME
AVAILABLE BECAUSE THESE DOCUMENTS CONTAIN OR WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND RELATED MATTERS. The Company’s investors and security holders will be able to obtain free copies of the Proxy
Statement/Prospectus (when they become available), as well as other filings containing important information about the Company, XCF, Southern, and other parties to the proposed transaction, without charge through the website maintained by the
SEC at www.sec.gov. Copies of the documents filed with the SEC by (i) the Company will be available free of charge under the tab “Financials” on the “Investor Relations” page of DevvStream’s website at www.devvstream.com/investors/or by
contacting DevvStream’s Investor Relations Department at [email protected] and (ii) XCF will be available free of charge under the tab “Financials” on the “Investor Relations” page of XCF’s website page of XCF’s website at
https://xcf.global/investor-relations/financials/sec-filings/ or by contacting XCF’s Investor Relations Department at [email protected].
Participants in the Solicitation
The Company, XCF, Southern, EEME and their respective directors and certain of their respective executive officers and employees may be deemed
to be participants in the solicitation of proxies from the Company’s stockholders in connection with the proposed transaction. Information regarding the directors and executive officers of (i) the Company is contained in the Company’s proxy
statement for its 2025 annual meeting of shareholders, filed with the SEC on November 18, 2025 and (ii) XCF is contained in the XCF’s Current Report on Form 8-K/A, filed with the SEC on October 31, 2025, its Annual Report on Form 10-K for the
year ended December 31, 2025, filed with the SEC on March 31, 2026, and in other documents subsequently filed with the SEC.
Additional information regarding the participants in the proxy solicitations and a description of their direct or indirect interests, by
security holdings or otherwise, will be contained in the Proxy Statement/Prospectus and other relevant materials filed with the SEC (when they become available). These documents can be obtained free of charge from the sources indicated above.
No Offer or Solicitation
This Current Report on Form 8-K is for informational purposes only and is not intended to and does not constitute an offer to sell or the
solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any offer, solicitation or sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.
Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K contains “forward-looking” statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Exchange Act that involve substantial risks and uncertainties, including statements regarding the proposed transactions contemplated by the business combination agreement, the anticipated structure, timing and conditions of
the proposed transaction, the anticipated completion of the plant conversion, the achievement of specified financial and operational milestones (including annualized blended fuel product revenues in excess of $1.0 billion and minimum
annualized EBITDA of $100 million), the anticipated issuance of state-supported bonds by Southern, the valuation the parties are aiming to achieve. All statements, other than statements of historical facts, are forward-looking statements,
including: statements regarding the expected timing and structure of the proposed transaction; the ability of the parties to complete the proposed transaction considering the various closing conditions; the expected benefits of the proposed
transaction; legal, economic, and regulatory conditions; and any assumptions underlying any of the foregoing. Forward-looking statements concern future circumstances and results and other statements that are not historical facts and are
sometimes identified by the words “aim,” “may,” “will,” “should,” “potential,” “intend,” “expect,” “endeavor,” “seek,” “anticipate,” “estimate,” “overestimate,” “underestimate,” “believe,” “plan,” “could,” “would,” “project,” “predict,”
“continue,” “target,” or the negatives of these words or other similar terms or expressions that concern the Company’s, DevvStream’s, or Southern’s expectations, strategy, priorities, plans, or intentions. Forward-looking statements are based
upon current plans, estimates, expectations, and assumptions that are subject to risks, uncertainties, and assumptions. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual
results may differ materially from those expressed or implied by such forward-looking statements. We can give no assurance that such plans, estimates, or expectations will be achieved, and therefore, actual results may differ materially from
any plans, estimates, or expectations in such forward-looking statements.
Forward-looking statements are based on current expectations, estimates, assumptions and projections and involve known and unknown risks and
uncertainties that may cause actual results, developments or outcomes to differ materially from those expressed or implied by such statements. Important factors that could cause actual results, developments or outcomes to differ materially
include, among others: (1) changes in domestic and foreign business, market, financial, political, regulatory and legal conditions; (2) the risk that the plant conversion is delayed, not completed on the anticipated timeline, or requires
additional capital beyond current expectations; (3) the risk that XCF is unable to achieve the specified annualized revenue and EBITDA thresholds, which depend in significant part on XCF’s business performance, operating results, market
demand, execution capabilities, and other factors; (4) the risk that Southern does not receive authorization to issue up to $400 million of bonds, that such bonds are delayed, issued on less favorable terms, or not issued at all; (5) the risk
that XCF is unable to obtain or maintain compliance with applicable Nasdaq continued listing standards, including regaining compliance with $1.00 minimum bid price requirement, which could result in delisting if compliance is not regained
within applicable cure periods; (6) the inability to satisfy or waive the closing conditions contemplated by the business combination agreement; (7) the occurrence of events, changes or other circumstances that could give rise to the
termination of the business combination agreement, or that could result in disputes or litigation relating to the interpretation, enforceability or performance of the binding provisions of the business combination agreement; (8) the outcome
of any legal proceedings that may be instituted against the Company, XCF, Southern, EEME or their respective affiliates, which could be costly, time-consuming, divert management attention and adversely affect liquidity or financial condition;
(9) uncertainty with respect to the scope, timing or completion of due diligence by any party and each party’s satisfaction therewith; (10) uncertainty regarding valuations, capital structure, financing arrangements, equity ownership, or the
allocation of economic interests contemplated by the business combination agreement, including the risk that, in the event the Proposed Transaction closes, the parties may never achieve their aim of creating a $3.0 billion combined enterprise
(as of the date hereof this statement only represents an objective that the parties intend to achieve on a future date and such objective has not in the past and may never in the future be achieved); (11) changes to the structure, timing or
terms of any Proposed Transaction that may be required or deemed appropriate as a result of applicable laws, regulations, accounting considerations, stock exchange requirements or regulatory guidance; (12) the risk that required regulatory,
governmental, stock exchange or stockholder approvals are not obtained, are delayed or are subject to conditions that could adversely affect the parties or the expected benefits of any contemplated transaction; (13) the risk that the
announcement of the business combination agreement or the pursuit of the contemplated transactions disrupts current plans, operations or relationships of the Company, XCF or Southern; (14) the risk that anticipated benefits of any
contemplated transaction are not realized due to competition, execution challenges, market conditions, or the inability to grow and manage operations profitably; (15) costs, expenses and management distraction associated with the business
combination agreement, negotiations, potential litigation and any contemplated transactions; (16) changes in applicable laws, regulations or enforcement priorities, including extensive regulation and compliance obligations applicable to the
parties’ businesses; and (17) other economic, business, competitive, operational or financial factors beyond management’s control, including those described under “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” in
the Company’s filings with the SEC, including the Company’s Form 10-K for the fiscal year ended July 31, 2025, filed with the SEC on November 6, 2025, and subsequent reports filed with SEC and Canadian securities regulatory authorities
available on the Company’s website at www.devvstream.com/investors/ and the Company’s profile at www.sedarplus.ca.
Although the business combination agreement is binding on the parties, it does not obligate the parties to consummate the
proposed transaction. The consummation of the proposed transaction remains subject to the satisfaction or waiver of applicable closing conditions, and the business combination agreement may be terminated in accordance with its terms. There
can be no assurance that the proposed transaction will be consummated on the terms described herein or at all. Investors are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof and
are not guarantees of future performance or outcomes.
Any forward-looking statements speak only as of the date of this Current Report on Form 8-K. Neither the Company, XCF, Southern or EEME undertakes any
obligation to update any forward-looking statements, whether as a result of new information or developments, future events, or otherwise, except as required by law. Neither future distribution of this Current Report on Form 8-K nor the
continued availability of this Current Report on Form 8-K in archive form on the Company’s website at www.devvstream.com/investors/ or XCF’s website at www.xcf.global/investor-relations should be deemed to constitute an update or
re-affirmation of these statements as of any future date.
| Item 9.01 |
Financial Statements and Exhibits.
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(d) Exhibits:
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Exhibit No.
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Description
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Business Combination Agreement, dated as of April 13, 2026, by and among
the Company, XCF Global, Inc., Southern Energy Renewables Inc., DevvStream Merger Sub Inc., and Southern Merger Sub Inc.
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Form of XCF Support & Lock-Up Agreement.
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Form of DevvStream Support & Lock-Up Agreement.
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Form of Southern Support & Lock-Up Agreement
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Press Release, dated April 14, 2026.
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104
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Cover page Interactive Data File (embedded in the cover page formatted in Inline XBRL)
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* Certain schedules, annexes and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The registrant will furnish copies of any such schedules, annexes and exhibits to the U.S.
Securities and Exchange Commission upon request.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
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Dated: April 14, 2026
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DEVVSTREAM CORP.
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By:
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/s/ Sunny Trinh
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Name:
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Sunny Trinh
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Title:
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Chief Executive Officer
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Execution Version
BUSINESS COMBINATION AGREEMENT
by and among
XCF Global, Inc.
DevvStream Corp.,
Southern Energy Renewables Inc.,
DevvStream Merger Sub Inc.
and
Southern Merger Sub Inc.
Dated as of April 13, 2026
TABLE OF CONTENTS
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Page
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ARTICLE I CLOSING
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3
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1.1
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Effective Date and Closing
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3
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1.2
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Exchange of Southern Securities
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3
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1.3
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Exchange of DevvStream Securities
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4
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1.4
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Issuance of Company Common Shares
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7
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1.5
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No Fractional Company Common Shares
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7
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|
1.6
|
Withholding Taxes
|
8
|
|
|
1.7
|
Announcement and Shareholder Communications
|
8
|
|
|
ARTICLE II DOMESTICATION; DEVVSTREAM MEETING
|
8
|
||
|
2.1
|
Domestication
|
8
|
|
|
2.2
|
The DevvStream Meeting
|
10
|
|
|
2.3
|
The DevvStream Circular
|
11
|
|
|
ARTICLE III THE MERGERS
|
13
|
||
|
3.1
|
Implementation of the Mergers
|
13
|
|
|
3.2
|
Charter Documents of the Surviving Corporations
|
14
|
|
|
3.3
|
Directors and Officers of Surviving Corporation
|
14
|
|
|
3.4
|
Registration Statement.
|
14
|
|
|
3.5
|
The Company Meeting; Proxy Statement
|
15
|
|
|
3.6
|
Intended US Tax Treatment
|
17
|
|
|
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SOUTHERN
|
17
|
||
|
4.1
|
Organization and Standing
|
17
|
|
|
4.2
|
Authorization; Binding Agreement
|
17
|
|
|
4.3
|
Governmental Approvals
|
18
|
|
|
4.4
|
Non-Contravention
|
19
|
|
|
4.5
|
Capitalization
|
19
|
|
|
4.6
|
Subsidiaries
|
20
|
|
|
4.7
|
Financials
|
20
|
|
|
4.8
|
Absence of Certain Changes
|
21
|
|
|
4.9
|
Compliance with Laws
|
21
|
|
|
4.10
|
Southern Permits
|
22
|
|
|
4.11
|
Carbon Credits
|
22
|
|
|
4.12
|
Litigation
|
22
|
|
|
4.13
|
Material Contracts
|
22
|
|
|
4.14
|
Intellectual Property
|
25
|
|
|
4.15
|
Taxes and Returns
|
28
|
|
|
4.16
|
Real Property
|
30
|
|
|
4.17
|
Personal Property
|
31
|
|
|
4.18
|
Title to and Sufficiency of Assets
|
31
|
|
|
4.19
|
Employee Matters
|
31
|
|
|
4.20
|
Benefit Plans
|
32
|
|
i
TABLE OF CONTENTS (cont’d)
| Page | |||
|
4.21
|
Environmental Matters
|
34
|
|
|
4.22
|
Related Person Transactions
|
35
|
|
|
4.23
|
Insurance
|
35
|
|
|
4.24
|
Books and Records
|
35
|
|
|
4.25
|
Certain Business Practices
|
36
|
|
|
4.26
|
Compliance with Privacy Laws, Privacy Policies and Certain Contracts
|
36
|
|
|
4.27
|
Investment Company Act
|
37
|
|
|
4.28
|
Finders and Brokers
|
37
|
|
|
4.29
|
Independent Investigation
|
37
|
|
|
4.30
|
Information Supplied
|
37
|
|
|
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE MERGER SUBS
|
38
|
||
|
5.1
|
Organization and Standing
|
38
|
|
|
5.2
|
Authorization; Binding Agreement
|
38
|
|
|
5.3
|
Governmental Approvals
|
39
|
|
|
5.4
|
Non-Contravention
|
39
|
|
|
5.5
|
Capitalization
|
39
|
|
|
5.6
|
Merger Sub Activities
|
40
|
|
|
5.7
|
Compliance with Laws
|
40
|
|
|
5.8
|
Actions; Orders
|
40
|
|
|
5.9
|
Transactions with Related Parties
|
40
|
|
|
5.10
|
Finders and Brokers
|
40
|
|
|
5.11
|
Investment Company Act
|
40
|
|
|
5.12
|
Taxes
|
41
|
|
|
5.13
|
Independent Investigation
|
41
|
|
|
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF DEVVSTREAM
|
41
|
||
|
6.1
|
Organization and Standing
|
41
|
|
|
6.2
|
Authorization; Binding Agreement
|
42
|
|
|
6.3
|
Governmental Approvals
|
43
|
|
|
6.4
|
Non-Contravention
|
43
|
|
|
6.5
|
Capitalization
|
43
|
|
|
6.6
|
Subsidiaries
|
45
|
|
|
6.7
|
Financial Statements
|
45
|
|
|
6.8
|
Absence of Certain Changes
|
46
|
|
|
6.9
|
Securities Laws
|
47
|
|
|
6.10
|
Compliance with Laws and Carbon Standards
|
47
|
|
|
6.11
|
DevvStream Permits and Registry Accounts
|
47
|
|
|
6.12
|
Carbon Credits
|
48
|
|
|
6.13
|
Litigation
|
48
|
|
|
6.14
|
Material Contracts
|
48
|
|
|
6.15
|
Intellectual Property
|
51
|
|
|
6.16
|
Taxes and Returns
|
54
|
|
|
6.17
|
Real Property
|
57
|
|
ii
TABLE OF CONTENTS (cont’d)
| Page | |||
|
6.18
|
Personal Property
|
58
|
|
|
6.19
|
Title to and Sufficiency of Assets
|
58
|
|
|
6.20
|
Employee Matters
|
58
|
|
|
6.21
|
Benefit Plans
|
60
|
|
|
6.22
|
Environmental Matters
|
61
|
|
|
6.23
|
Related Person Transactions
|
62
|
|
|
6.24
|
Insurance
|
62
|
|
|
6.25
|
Books and Records
|
63
|
|
|
6.26
|
Certain Business Practices
|
63
|
|
|
6.27
|
Compliance with Privacy Laws, Privacy Policies and Certain Contracts
|
63
|
|
|
6.28
|
Investment Company Act
|
64
|
|
|
6.29
|
Finders and Brokers
|
64
|
|
|
6.30
|
Independent Investigation
|
64
|
|
|
6.31
|
Information Supplied
|
65
|
|
|
6.32
|
DevvStream SEC Documents
|
65
|
|
|
6.33
|
No Collateral Benefit
|
66
|
|
|
6.34
|
Competition Act
|
66
|
|
|
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE COMPANY
|
66
|
||
|
7.1
|
Organization and Standing
|
66
|
|
|
7.2
|
Authorization; Binding Agreement
|
67
|
|
|
7.3
|
Governmental Approvals
|
67
|
|
|
7.4
|
Non-Contravention
|
68
|
|
|
7.5
|
Capitalization
|
68
|
|
|
7.6
|
Subsidiaries
|
69
|
|
|
7.7
|
Financial Statements
|
70
|
|
|
7.8
|
Absence of Certain Changes
|
71
|
|
|
7.9
|
Securities Laws
|
72
|
|
|
7.10
|
Compliance with Laws and Carbon Standards
|
72
|
|
|
7.11
|
Company Permits and Registry Accounts
|
72
|
|
|
7.12
|
Carbon Credits
|
73
|
|
|
7.13
|
Litigation
|
73
|
|
|
7.14
|
Material Contracts
|
73
|
|
|
7.15
|
Intellectual Property
|
76
|
|
|
7.16
|
Taxes and Returns
|
79
|
|
|
7.17
|
Real Property
|
81
|
|
|
7.18
|
Title to and Sufficiency of Assets
|
82
|
|
|
7.19
|
Employee Matters
|
82
|
|
|
7.20
|
Benefit Plans
|
84
|
|
|
7.21
|
Environmental Matters
|
85
|
|
|
7.22
|
Related Person Transactions
|
86
|
|
|
7.23
|
Insurance
|
86
|
|
|
7.24
|
Books and Records
|
86
|
|
|
7.25
|
Certain Business Practices
|
86
|
|
iii
TABLE OF CONTENTS (cont’d)
| Page | |||
|
7.26
|
Compliance with Privacy Laws, Privacy Policies and Certain Contracts
|
87
|
|
|
7.27
|
Investment Company Act
|
88
|
|
|
7.28
|
Finders and Brokers
|
88
|
|
|
7.29
|
Independent Investigation
|
88
|
|
|
7.30
|
Information Supplied
|
88
|
|
|
7.31
|
Company SEC Documents
|
89
|
|
|
ARTICLE VIII COVENANTS
|
89
|
||
|
8.1
|
Access and Information
|
89
|
|
|
8.2
|
Conduct of Business of DevvStream and its Subsidiaries
|
90
|
|
|
8.3
|
Conduct of Business of Southern
|
93
|
|
|
8.4
|
Conduct of Business of Merger Subs.
|
96
|
|
|
8.5
|
Conduct of Business of the Company and its Subsidiaries
|
97
|
|
|
8.6
|
Covenants Relating to the Transactions
|
99
|
|
|
8.7
|
Regulatory Approvals
|
103
|
|
|
8.8
|
No Solicitation
|
104
|
|
|
8.9
|
No Trading
|
107
|
|
|
8.10
|
Notification of Certain Matters
|
108
|
|
|
8.11
|
Tax Matters
|
108
|
|
|
8.12
|
Securityholder Litigation and Dissenter's Rights
|
108
|
|
|
8.13
|
Confidential Information
|
109
|
|
|
8.14
|
Post-Closing Board of Directors and Executive Officers
|
109
|
|
|
8.15
|
Insurance and Indemnification
|
110
|
|
|
8.16
|
Financial Statements
|
111
|
|
|
8.17
|
Pre-Closing Reorganization
|
112
|
|
|
8.18
|
Plant Conversion
|
113
|
|
|
8.19
|
Asset Spin
|
114
|
|
|
8.20
|
SAF Offtake Agreement
|
114
|
|
|
8.21
|
Non-SAF Offtake Agreements
|
114
|
|
|
ARTICLE IX NO SURVIVAL
|
114
|
||
|
9.1
|
No Survival
|
114
|
|
|
ARTICLE X CLOSING CONDITIONS
|
115
|
||
|
10.1
|
Conditions to Each Party’s Obligations
|
115
|
|
|
10.2
|
Conditions to Obligations of the Company
|
116
|
|
|
10.3
|
Conditions to Obligations of Southern
|
118
|
|
|
10.4
|
Conditions to Obligations of DevvStream
|
120
|
|
|
10.5
|
Frustration of Conditions
|
123
|
|
|
ARTICLE XI TERMINATION AND EXPENSES
|
123
|
||
|
11.1
|
Termination
|
123
|
|
|
11.2
|
Effect of Termination
|
127
|
|
|
11.3
|
Fees and Expenses
|
129
|
|
iv
TABLE OF CONTENTS (cont’d)
| Page | |||
|
ARTICLE XII MISCELLANEOUS
|
130
|
||
|
12.1
|
Notices
|
130
|
|
|
12.2
|
Binding Effect; Assignment
|
132
|
|
|
12.3
|
Third Parties
|
132
|
|
|
12.4
|
Governing Law; Jurisdiction
|
132
|
|
|
12.5
|
Waiver of Jury Trial
|
132
|
|
|
12.6
|
Remedies; Specific Performance
|
133
|
|
|
12.7
|
Severability
|
133
|
|
|
12.8
|
Amendment and Waiver
|
133
|
|
|
12.9
|
No Recourse
|
134
|
|
|
12.10
|
Entire Agreement
|
134
|
|
|
12.11
|
Interpretation
|
135
|
|
|
12.12
|
Counterparts
|
136
|
|
|
12.13
|
Conflicts and Privilege
|
136
|
|
|
12.14
|
Prior Agreement
|
138
|
|
|
ARTICLE XIII DEFINITIONS
|
138
|
||
|
13.1
|
Certain Definitions
|
138
|
|
|
EXHIBITS
|
|
|
|
Exhibit A
|
-
|
Company Support & Lock-Up Agreement
|
|
Exhibit B
|
-
|
DevvStream Support and Lock-Up Agreement
|
|
Exhibit C
|
-
|
Southern Support & Lock-up Agreement
|
|
|
|
|
|
SCHEDULES
|
|
|
|
Schedule A
|
-
|
Company Core Securityholders & DevvStream Core Securityholders
|
v
BUSINESS COMBINATION AGREEMENT
THIS BUSINESS COMBINATION AGREEMENT (this “Agreement”) is made and entered into as of April 13, 2026 (the “Signing Date”)
by and among:
A. XCF Global, Inc., a Delaware corporation (the “Company”);
B. DevvStream Corp., an Alberta corporation (“DevvStream”);
C. Southern Energy Renewables Inc., a Louisiana corporation (“Southern”);
D. Southern Merger Sub Inc., a Delaware corporation and a newly-formed wholly-owned subsidiary of the Company (“Southern Merger Sub”); and
E. DevvStream Merger Sub Inc., a Delaware corporation and a newly-formed wholly-owned subsidiary of the Company (“DevvStream Merger Sub”).
The Company, DevvStream, Southern, Southern Merger Sub and DevvStream Merger Sub are sometimes referred to herein individually as a
“Party” and, collectively, as the “Parties.” Southern Merger Sub and DevvStream Merger Sub are sometimes referred
to herein individually as a “Merger Sub” and, collectively, as the “Merger Subs”. Capitalized terms used and not
otherwise defined herein have the meaning set forth in Article XIII.
RECITALS:
WHEREAS, the Company is a holding company that, through its direct and indirect Subsidiaries, is engaged in the development of alternative energy platforms;
WHEREAS, the Parties intend to effect a business combination whereby the Company will acquire all of the issued and outstanding equity interests of both Southern and DevvStream (following the Domestication), such
that Southern and DevvStream will become wholly-owned Subsidiaries of the Company;
WHEREAS, prior to the Effective Time, DevvStream shall migrate to and domesticate as a Delaware corporation in accordance with Section 388 of the DGCL and Section 189 of the ABCA (the “Domestication”);
WHEREAS, in furtherance of the business combination, and in accordance with the DGCL, the LBCA and the ABCA (as applicable) and following the Domestication: (i) Southern Merger Sub shall merge with and into Southern
(the “Southern Merger”), with Southern surviving the Southern Merger as a wholly-owned Subsidiary of the Company; and (ii) DevvStream Merger Sub shall merge with and into
DevvStream (as redomiciled pursuant to the Domestication) (the “DevvStream Merger” and, together with the Southern Merger, the “Mergers”), with DevvStream surviving the DevvStream Merger as a wholly-owned Subsidiary of the Company;
WHEREAS, for U.S. federal income tax purposes, the Parties intend that (i) the Domestication shall constitute a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code, and (ii) the Mergers will
each constitute a “reorganization” within the meaning of Section 368(a) of the Code;
WHEREAS, the board of directors of the Company (the “Company Board”) has formed a special committee of directors (the “Company Special Committee”) to evaluate the Transaction;
WHEREAS, the Company Special Committee has, subject to receipt of a satisfactory Company Fairness Opinion, unanimously (i) determined that the Merger and the other Transactions are fair to, and in the best
interests of, the Company and the Company Shareholders, (ii) approved the execution, delivery and performance of this Agreement, the Ancillary Documents and the consummation of the Transactions and (iii) recommended that the Company
Board approve the execution, delivery and performance of this Agreement, the Ancillary Documents and the consummation of the Transactions;
WHEREAS, the Company Board (acting upon the unanimous recommendation of the Company Special Committee) has, subject to receipt of a satisfactory Company Fairness Opinion, unanimously (i) determined that the Merger
and the other Transactions are fair to, and in the best interests of, the Company and the Company Shareholders, (ii) approved the execution, delivery and performance of this Agreement, the Ancillary Documents and the consummation of
the Transactions and (iii) resolved to recommend that the Company Shareholders vote in favor of the approval of this Agreement, the Ancillary Documents and the consummation of the Transactions (the “Company Board Recommendation”);
WHEREAS, the DevvStream Board has formed a special committee of directors (the “DevvStream Special Committee”) to evaluate the Transaction;
WHEREAS, the DevvStream Special Committee has, subject to receipt of a satisfactory DevvStream Fairness Opinion, unanimously (i) determined that the DevvStream Merger and the other Transactions are fair to, and in
the best interests of, DevvStream and the DevvStream Shareholders, (ii) approved the execution, delivery and performance of this Agreement, the Ancillary Documents to which DevvStream is a party and the consummation of the
Transactions and (iii) recommended that the DevvStream Board approve the execution, delivery and performance of this Agreement, the Ancillary Documents to which DevvStream is a party and the consummation of the Transactions;
WHEREAS, the DevvStream Board (acting upon the unanimous recommendation of the DevvStream Special Committee) has, subject to receipt of a satisfactory DevvStream Fairness Opinion, unanimously (i) determined that
the DevvStream Merger and the other Transactions are fair to, and in the best interests of, DevvStream and the DevvStream Shareholders, (ii) approved the execution, delivery and performance of this Agreement, the Ancillary Documents
to which DevvStream is a party and the consummation of the Transactions and (iii) resolved to recommend that the DevvStream Shareholders vote in favor of the approval of this Agreement and the consummation of the Transactions (the “DevvStream Board Recommendation”);
WHEREAS, the Board of Directors of Southern (the “Southern Board”) has unanimously (i) determined that the Transactions, including the Southern Merger,
are in the best interests of Southern and the Southern Shareholders, (ii) approved this Agreement, the Ancillary Documents to which Southern is a party, and the Transactions, and (iii) resolved to recommend that the Southern
Shareholders vote in favor of the Transactions;
2
WHEREAS, the Boards of Directors of Southern Merger Sub and DevvStream Merger Sub have each unanimously (i) determined that the Southern Merger and the DevvStream Merger, respectively, are in the best interests of
each of Southern Merger Sub and DevvStream Merger Sub, respectively, and its sole stockholder, and (ii) approved this Agreement and the Transactions; and
WHEREAS, concurrently with the execution and delivery of this Agreement, certain insider stockholders of the Company (the “Company Core Securityholders”)
and DevvStream (the “DevvStream Core Securityholders”) set forth on Schedule A and the Southern Shareholders
have entered into Support & Lock-Up Agreements, in each case substantially in the forms attached hereto as Exhibit A (the “Company Support & Lock-Up Agreement”), Exhibit B (the “DevvStream Support & Lock-Up
Agreement”) and Exhibit C (the “Southern Support & Lock-Up Agreement”), respectively.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the Parties hereby agree as follows:
ARTICLE I
CLOSING
1.1 Effective Date and Closing.
(a) Subject
to the satisfaction or waiver of the conditions set forth in Article IX, unless this Agreement is earlier terminated in accordance with Article X, the consummation of the Transactions (the “Closing”) shall take place by electronic exchange of executed documents (other than the
filing of the Merger Certificates) on a date and at a time to be agreed upon by the Parties, which date shall be no later than the second (2nd) Business Day after all the Closing conditions to this Agreement have been satisfied
or, if permissible, waived (other than those conditions that by their nature are required to be satisfied at the Closing, it being understood that the occurrence of the Closing shall remain subject to the satisfaction, or if
permissible, waiver of such conditions at the Closing), or at such other date, time or place (including remotely) as the Parties may mutually agree (the date and time at which the Closing is actually held being the “Closing Date”).
(b) At
the Closing and on the Effective Date, the Parties shall cause the consummation of the Mergers to occur, upon the terms and subject to the conditions of this Agreement, such that the Parties shall cause the Merger Certificates to
be filed with the Delaware and Louisiana Secretaries of State (as applicable) in accordance with Article III, so that the Mergers will become effective at the Effective
Time.
1.2 Exchange of Southern Securities. On the Effective Date, at the Effective Time and in accordance with the Merger Certificates, by virtue of the Southern Merger and without any action on the
part of any Southern Shareholder:
3
(a) All
of the Southern Shares (other than Southern Shares held in treasury) issued and outstanding immediately prior to the Effective Time shall be exchanged for an aggregate number of Company Common Shares equal to the Southern
Consideration Shares. Each Southern Shareholder as of immediately prior to the Effective Time shall be entitled to receive its pro rata share of the Southern Consideration Shares at or as soon as reasonably practicable after the
Effective Time, subject to Section 1.4.
(b) All
Southern Shares held in the treasury of Southern immediately prior to the Effective Time shall be automatically canceled without any conversion thereof and cease to exist and no payment or distribution shall be made with respect
thereto.
(c) Each
share of common stock of Southern Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one (1) validly issued, fully paid and non-assessable share of common stock of
the Southern Surviving Corporation.
1.3 Exchange of DevvStream Securities. On the Effective Date, at the Effective Time and in accordance with the Merger Certificates, by virtue of the DevvStream
Merger and without any action on the part of any DevvStream Shareholder:
(a) Each
DevvStream Share issued and outstanding immediately prior to the Effective Time (and following the Domestication) (other than DevvStream Shares held in treasury) shall be automatically cancelled and extinguished and converted into
the right to receive a number of Company Common Shares equal to the DevvStream Per Share Consideration.
(b) All
DevvStream Shares held in the treasury of DevvStream and any DevvStream Shares owned by Southern or the Company immediately prior to the Effective Time or DevvStream Convertible Securities (including any preferred shares or other
equity securities issued to Southern following the date of this Agreement) owned by Southern or the Company immediately prior to the Effective Time, in each case, shall be automatically canceled without any conversion thereof and
cease to exist and no payment or distribution shall be made with respect thereto.
(c) Each DevvStream Warrant set forth on Section 6.5(c) of the DevvStream Disclosure Schedules exercisable
for Post-Domestication DevvStream Common Shares (each, a “DevvStream Warrant”) that is outstanding shall be automatically and without any required action on the part of any holder or beneficiary thereof, be assumed by the Company and exercisable for Company Common Shares (the “Converted Warrant”). Each Converted Warrant shall continue to have and be subject to substantially the
same terms and conditions as were applicable to such DevvStream Warrant immediately before the Effective Time (including expiration date, vesting conditions, and exercise provisions), except that (i) each Converted Warrant shall
be exercisable for that number of Company Common Shares equal to the product (rounded down to the nearest whole number) of (A) the number of DevvStream
Common Shares subject to such DevvStream Warrant immediately before the Effective Time and (B) the DevvStream Per Share Consideration; and (ii) the per share exercise price for each Company Common Share issuable upon exercise of the
Converted Warrant shall be equal to the quotient (rounded up to the nearest whole cent) obtained by dividing (A) the exercise price per DevvStream Common Share of such DevvStream Warrant immediately before the Effective Time by (B) the DevvStream Per Share Consideration.
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(d) Each option set forth on Section 6.5(b) of the DevvStream Disclosure Schedules to purchase
Post-Domestication DevvStream Common Shares (each, a "DevvStream Option") that is outstanding, whether under any of the equity incentive plans of DevvStream, including the DevvStream Corp. 2024 Equity Incentive Plan, the DevvStream Holdings Inc.
2022 Equity Incentive Plan, or the DevvESG Streaming Inc. 2022 Non-Qualified Stock Option Plan (collectively, the "DevvStream Equity Incentive Plans") or otherwise, immediately before the Effective Time, whether vested or
unvested, shall, except as provided in Section 6.4(d) of the DevvStream Disclosure Schedules, automatically and without any required action on the part of any holder or beneficiary thereof, be assumed by the Company and
converted into an option to purchase Company Common Shares (each, a "Converted Option"). Each Converted Option shall continue to have and be
subject to substantially the same terms and conditions as were applicable to such DevvStream Option immediately before the Effective Time (including expiration date, vesting conditions, and exercise provisions), except that (i)
each Converted Option shall be exercisable for that number of Company Common Shares equal to the product (rounded down to the nearest whole number) of
(A) the number of DevvStream Common Shares subject to DevvStream Option immediately before the Effective Time and (B) the DevvStream Per Share
Consideration; and (ii) the per share exercise price for each Company Common Share
issuable upon exercise of the Converted Option shall be equal to the quotient (rounded up to the nearest whole cent) obtained by dividing (A) the exercise price per DevvStream Common Share of such DevvStream Option immediately before the Effective Time by (B) the DevvStream Per Share Consideration;
provided, however, that the exercise price and the number of Company Common Shares purchasable under each Converted Option shall be determined in a
manner consistent with the requirements of Section 409A of the Code and the applicable regulations promulgated thereunder; provided, further, that in the case of any DevvStream Option to which Section 422 of the Code applies,
the exercise price and the number of Company Common Shares purchasable under such Converted Option shall be determined in accordance with the foregoing
in a manner that satisfies the requirements of Section 424(a) of the Code.
(e) Each restricted stock unit set forth on Section 6.5(b) of the DevvStream Disclosure Schedules denominated in Post-Domestication DevvStream Common Shares (each, a "DevvStream RSU") that is outstanding under any DevvStream Equity
Incentive Plan or otherwise immediately before the Effective Time, whether vested or unvested, shall, except as provided in Section 6.4(d) of the DevvStream Disclosure Schedules, automatically and without any required action on the part of any holder or beneficiary thereof, be assumed by the Company and converted into a restricted stock unit denominated in Company
Common Shares (each, a "Converted RSU"). Each Converted RSU shall continue to have and be subject to substantially the same terms and conditions as were
applicable to such DevvStream RSU immediately before the Effective Time (including vesting and settlement conditions and dividend equivalent rights), except that each Converted RSU shall cover that number of Company
Common Shares equal to the product (rounded to the nearest whole number) of (A) the number of DevvStream Common Shares underlying such DevvStream RSU and (B) the DevvStream Per Share Consideration.
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(f) Each
convertible note set forth on Section 2.1(b) of the DevvStream Disclosure Schedules that is outstanding and convertible into Post-Domestication DevvStream Common Shares (each, a "DevvStream
Convertible Note") immediately before the Effective Time shall be assumed by the Company and convertible into Company Common Shares (each, a "Converted Note"),
either automatically and without any required action on the part of any holder or beneficiary thereof, or subject to the consent of Helena Global Investment Opportunities 1 Ltd. (“Helena”)
for such assumption the Helena Notes, if and as required. Each Converted Note shall continue to have and be subject to substantially the same terms and conditions as were applicable to such DevvStream Convertible Note immediately
before the Effective Time (including maturity date, interest rate, and conversion provisions), except that the per share conversion price for each Company Common Share issuable upon conversion of the Converted Note shall be equal
to the quotient (rounded up to the nearest whole cent) obtained by dividing (A) the conversion price per Post-Domestication DevvStream Common Share of such DevvStream Convertible Note immediately before the Effective Time by (B)
the DevvStream Per Share Consideration.
(g) Before the Effective Time, DevvStream shall adopt applicable resolutions and take all other appropriate actions to: (a) effectuate the provisions of Sections
1.3(d)-(e); and (b) ensure that after the Effective Time, neither any holder of Converted Options or Converted RSUs, any beneficiary thereof, nor any other participant in any DevvStream Equity Incentive Plan shall have any
right thereunder to acquire any securities of DevvStream or to receive any payment or benefit with respect to any award previously granted under the DevvStream Equity Incentive Plans, except as provided in Sections
1.3(d)-(e). At the Effective Time, the Company shall assume the DevvStream Equity Incentive Plans and each award agreement evidencing an equity
award granted by DevvStream outside of any such plan (each, an “Off-Plan Award”), provided that all references to "DevvStream" in the applicable DevvStream Equity Incentive Plan or Off-Plan Award and the documents
governing the Converted Options and Converted RSUs after the Effective Time will be deemed references to the Company and the number Company Common Shares available for awards under the DevvStream Equity Incentive Plans or
Off-Plan Award shall be determined by adjusting the number of DevvStream Common Shares available for awards under the DevvStream Equity Incentive Plans or Off-Plan Award immediately before the Effective Time in accordance with
the DevvStream Per Share Consideration.
(h) The Company will (a) reserve for issuance the number of Company Common Shares that will become subject to the Converted Options and Converted RSUs and (b) issue or
cause to be issued the appropriate number of Company Common Shares, upon the exercise of the Converted Options or upon the vesting and settlement of the Converted RSUs. As soon as practicable after the Effective Time, the
Company will prepare and file with the Securities and Exchange Commission a registration statement on Form S-8 (or other appropriate form) registering a number of shares of Company Common Shares necessary to fulfill the
Company's obligations under Sections 1.3(d)-(f). Such registration statement will be kept effective (and the current status of the prospectus required thereby will be maintained) for at least as long as any Converted
Options or Converted RSUs remain outstanding.
(i) Each
share of common stock of DevvStream Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one (1) validly issued, fully paid and non-assessable share of common stock of
the DevvStream Surviving Corporation.
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1.4 Issuance of Company Common Shares.
(a) Prior
to the Effective Time, the Company (i) shall appoint its transfer agent, Continental Stock Transfer & Trust Company, as its transfer and exchange agent for purposes of the exchange of the Southern Shares for the Southern
Consideration Shares and the DevvStream Shares for the DevvStream Consideration Shares (“Exchange Agent”), and (ii) shall deposit, or cause to be deposited, with the
Exchange Agent the Southern Consideration Shares and the DevvStream Consideration Shares (collectively, the “Merger Consideration Shares”).
(b) At
or prior to the Effective Time, the Company will send, or will cause the Exchange Agent to send, to each Southern Shareholder and DevvStream Shareholder, a letter of transmittal for use in such exchange, in the form mutually
agreed to by the Company, Southern and DevvStream (a “Letter of Transmittal”).
(c) The
Company shall cause the Exchange Agent to deliver to the applicable Southern Shareholder or DevvStream Shareholder the Southern Per Share Consideration or the DevvStream Per Share Consideration, as applicable, in respect of each
Southern Share or DevvStream Share held by such shareholder, upon the delivery by such shareholder of a properly completed and duly executed Letter of Transmittal to the Exchange Agent.
(d) All
Merger Consideration Shares issued as provided herein shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the Southern Shares or DevvStream Shares, as applicable, held by such
shareholder, and there shall be no further registration of transfers on the share transfer books of the Company of the Southern Shares or DevvStream Shares that were outstanding immediately prior to the Effective Time.
(e) To
the extent any certificate representing any Southern Share or DevvStream Share shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the applicable shareholder claiming such certificate to be
lost, stolen or destroyed and, if required by the Company, the posting by such shareholder of a bond in such reasonable amount as the Company may direct as indemnity against any claim that may be made against it with respect to
such certificate, the Company shall cause a treasury direction to be delivered as set forth in this Section 1.4 in exchange for the lost, stolen or destroyed such
certificate, the applicable Merger Consideration Shares with respect to the shares formerly represented thereby pursuant to this Agreement.
1.5 No Fractional Company Common Shares. No fractional Company Common Shares will be delivered to any Southern Shareholders or DevvStream Shareholders as of immediately prior to the Effective
Time pursuant to the Mergers and the aggregate number of any such shares that each such shareholder is otherwise entitled to receive pursuant to the Mergers will be rounded down to the nearest whole share of Company Common Shares.
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1.6 Withholding Taxes. The Company, Southern, DevvStream, Southern Merger Sub, DevvStream Merger Sub or the Exchange Agent, as applicable, shall be entitled to deduct or withhold, from any
amounts payable or otherwise deliverable to any Person pursuant to the Mergers or this Agreement such amounts as the Company, Southern, DevvStream, Southern Merger Sub, DevvStream Merger Sub or the Exchange Agent, as applicable,
determines, acting reasonably, are required or permitted to be deducted or withheld with respect to such payment or delivery under the ITA, the Code or any provision of any other applicable Laws. To the extent that such amounts are so
deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid, provided that such deducted or withheld amounts are
actually remitted to the appropriate Taxing Authority. Each of the Company, Southern, DevvStream, Southern Merger Sub, DevvStream Merger Sub or the Exchange Agent, as applicable, is hereby authorized to sell or otherwise dispose of,
on behalf of such Person, such portion of any share or other security deliverable to such Person as is necessary to provide sufficient funds to enable it to comply with such deduction or withholding requirement and shall notify such
Person thereof and remit the applicable portion of the net proceeds of such sale to the appropriate Taxing Authority and, if applicable, any portion of such net proceeds that is not required to be so remitted shall be paid to such
Person.
1.7 Announcement and Shareholder Communications. The Parties shall issue a joint press release with respect to this Agreement and the Transactions promptly following the execution of this
Agreement, the text of such announcement to be in the form approved by the Company, Southern and DevvStream in advance, acting reasonably and without delay. The Company, Southern and DevvStream agree to co-operate in the preparation
of presentations, if any, to the Company Shareholders, the Southern Shareholders and the DevvStream Shareholders regarding the Transactions, and no Party shall issue any news release or otherwise make public announcements with respect
to this Agreement or the Transactions without the consent of the other Parties (which consent shall not be unreasonably withheld, delayed or conditioned); provided, however, that the foregoing shall be subject to each Party’s
overriding obligation to make any disclosure or filing, in the opinion of its legal counsel, required under applicable Laws or, in the case of the Company or DevvStream, stock exchange rules, and the Party making such disclosure shall
use all commercially reasonable efforts to give prior oral or written notice to the other Parties and reasonable opportunity to review or comment on the disclosure or filing and give reasonable consideration to any such comment, and
if such prior notice is not possible, to give such notice immediately following the making of such disclosure or filing.
ARTICLE II
DOMESTICATION; DEVVSTREAM MEETING.
2.1 Domestication. The Parties agree that the Domestication will be implemented in accordance with and subject to the terms and conditions of this Agreement. DevvStream shall effect and carry
out the steps, actions and/or transactions to be carried out by it below.
(a) Subject
to receipt of the Required DevvStream Shareholder Approval and prior to the Effective Time, DevvStream shall cause the Domestication to become effective, including by (i) filing with the Secretary of State of the State of Delaware
a certificate of corporate domestication with respect to the Domestication (the “Certificate of Domestication”), in accordance with the provisions thereof and Section 388
of the DGCL, (ii) and submitting a statutory declaration with the Alberta Registrar of Corporations (the “AB Registrar”), together with all other documents, including
applicable legal opinions, necessary to obtain a letter from the AB Registrar authorizing DevvStream to continue out of Alberta and into Delaware (the “Letter of Authorization”),
and (iii) acknowledging, executing, delivering and/or filing all such other notices, declarations, affidavits, undertakings and other documents and instruments, paying all applicable such fees, costs and expenses, as may be
required under applicable Law or otherwise to effect the Domestication.
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(b) The
Certificate of Domestication shall provide that at the effective time of the Domestication, by virtue of the Domestication, and without any action on the part of any DevvStream Shareholders, (i) each then issued and outstanding
Pre-Domestication DevvStream Common Share will convert automatically, on a one-for-one basis, into one Post-Domestication DevvStream Common Share, (ii) each then issued and outstanding DevvStream Convertible Security and
DevvStream Warrant set forth on Section 2.1(b) of the DevvStream Disclosure Schedules that are exercisable for, or convertible into, Pre-Domestication DevvStream Common
Shares shall convert automatically, on a one-for-one basis, into a convertible security or warrant (as applicable) of the post-Domestication DevvStream entity on terms that are substantially similar terms and that are exercisable
for, or convertible into, an equivalent number of Post-Domestication DevvStream Common Shares, in each case, as the DevvStream Convertible Security and DevvStream Warrant so converted, and (iii) all the property, rights,
privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations of DevvStream immediately prior to the Domestication (including under this Agreement, the other Ancillary Documents) to continue and to be
the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations of DevvStream following the Domestication.
(c) For
U.S. federal income tax purposes, the Domestication is intended to constitute an “F reorganization” within the meaning of Section 368(a)(1)(F) of the Code. DevvStream hereby (i) adopts this Agreement as a “plan of reorganization”
within the meaning of Section 1.368-2(g) of the United States Treasury Regulations, (ii) agrees to file and retain such information as shall be required under Section 1.368-3 of the United States Treasury Regulations with respect
to the Domestication, and (iii) agrees to file all Tax and other informational returns on a basis consistent with such characterization and not take any inconsistent position on any Tax Return or in any Proceeding with any Taxing
Authority, except if otherwise required by a “determination” within the meaning of Code Section 1313. Notwithstanding the foregoing or anything else to the contrary contained in this Agreement, the Parties acknowledge and agree
that no party is making any representation or warranty as to the qualification of the Domestication as a reorganization under Section 368 of the Code or as to the effect, if any, that any transaction consummated on, after or prior
to the Domestication has or may have on any such reorganization status. Each of the parties acknowledges and agrees that each (A) has had the opportunity to obtain independent legal and tax advice with respect to the
Domestication, and (B) is responsible for any adverse Tax consequences that may result if the Domestication is determined not to qualify as a reorganization under Section 368 of the Code.
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2.2 The DevvStream Meeting
(a) Subject
to the terms of this Agreement, DevvStream covenants that it will:
(i) Promptly following the Registration Statement being declared effective, and within the time period provided in the proxy statement/prospectus contained therein, convene and conduct the DevvStream Meeting in accordance
with DevvStream’s Organizational Documents and applicable Law, and, in this regard, DevvStream may abridge any time periods that may be abridged under securities Laws for the purpose of considering the DevvStream Resolutions and
for any other proper purpose as may be set out in the DevvStream Circular and agreed to by the Company and Southern, acting reasonably; and not adjourn, postpone or cancel (or propose the adjournment, postponement or cancellation
of) the DevvStream Meeting without the prior written consent of the Company and Southern except (A) as required for quorum purposes (in which case the DevvStream Meeting will be adjourned and not cancelled), (B) as reasonably
required by Law or by a Governmental Authority, (C) as required pursuant to and in accordance with Section 8.8(h) or otherwise expressly permitted by this Agreement, or
(D) for adjournments or postponements of not more than ten (10) Business Days in the aggregate for the purposes of attempting to solicit proxies to obtain the requisite approval of the DevvStream Resolutions if such requisite
approval would not be expected to be obtained without such adjournment or postponement and such adjournments and postponements would not result in the DevvStream Meeting being held on a date that would prevent the Effective Date
from occurring prior to the Outside Date;
(ii) use its commercially reasonable efforts to solicit proxies in favor of the approval of the DevvStream Resolutions and against any resolution submitted by any DevvStream Securityholder that is inconsistent with
the DevvStream Resolutions and the completion of any of the Transactions, including, if otherwise determined necessary or advisable by DevvStream or if so requested by the Company or Southern, acting reasonably, using investment
dealers and proxy solicitation services firms selected by DevvStream (acceptable to the Company and Southern, acting reasonably) to solicit proxies in favor of the approval of the DevvStream Resolutions and against any resolution
submitted by any DevvStream Securityholder that is inconsistent with the DevvStream Resolutions;
(iii) consult with the Company and Southern in fixing the date of the DevvStream Meeting and the record date of the DevvStream Meeting;
(iv) promptly provide the Company and Southern with copies of or access to information regarding the DevvStream Meeting generated by any transfer agent, dealer or proxy solicitation services firm, as reasonably
requested from time to time by the Company or Southern;
(v) promptly advise the Company and Southern, at such times as the Company or Southern may reasonably request, and at least once daily for the ten (10) Business Days immediately preceding the DevvStream Meeting, as
to the aggregate tally of the proxies received by DevvStream in respect of the DevvStream Resolutions;
(vi) give notice to the Company and Southern of the DevvStream Meeting and allow Representatives of the Company and Southern to attend the DevvStream Meeting;
(vii) promptly advise the Company and Southern of any material communication (written or oral) from any Person in opposition to the Transactions, written notice of dissent or purported exercise or withdrawal of
dissent rights by the DevvStream Shareholders, and provide the Company and Southern with an opportunity to review and comment upon any written communications sent by or on behalf of DevvStream to any such Person and to participate
in any discussions, negotiations or proceedings involving such Person;
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(viii) not pay, settle or compromise or agree to any payment, settlement or compromise any claims regarding the Transactions or claims for dissent rights without the prior written consent of the Company and Southern
(such consent not to be unreasonably withheld, conditioned or delayed);
(ix) not, without the prior written consent of the Company and Southern (such consent not to be unreasonably withheld, conditioned or delayed), waive the deadline for the submission of proxies by DevvStream
Shareholders for the DevvStream Meeting;
(x) not change the record date for the DevvStream Shareholders entitled to vote at the DevvStream Meeting in connection with any adjournment or postponement of the DevvStream Meeting unless required by applicable
Law or the Court or with the prior written consent of the Company and Southern (such consent not to be unreasonably withheld, conditioned or delayed);
(xi) at the request of the Company or Southern from time to time, provide the Company and Southern with a list (in both written and electronic form) of (i) the DevvStream Shareholders entitled to vote at the
DevvStream Meeting, together with their addresses and respective holdings of DevvStream Shares, (ii) the names, addresses and holdings of all Persons having rights issued by DevvStream to acquire DevvStream Shares (including
holders of convertible securities of DevvStream), and (iii) participants and book-based nominee registrants such as CDS & Co., CEDE & Co. and DTC, and non-objecting beneficial owners of DevvStream Shares, together with
their addresses and respective holdings of DevvStream Shares, as applicable; and
(xii) if the DevvStream Meeting is to be held during a Matching Period, at the request of the Company or Southern, adjourn or postpone the DevvStream Meeting to a date specified by the Company or Southern that is not
later than fifteen (15) Business Days after the date on which the DevvStream Meeting was originally scheduled and in any event to a date that is not later than five (5) Business Days prior to the Outside Date.
2.3 The DevvStream Circular
(a) DevvStream
shall: (i) reasonably cooperate with the Company in the preparation of DevvStream Circular for inclusion in the Registration Statement to be prepared pursuant to Section 3.4,
subject to the Company’s and Southern’s compliance with Section 2.3(d), (ii) complete, in consultation with the Company and Southern, the DevvStream Circular, together
with any other documents required by Law in connection with the DevvStream Meeting; and (iii) cause the DevvStream Circular, and such other documents as may be required by Law or the rules of Nasdaq and Nasdaq Sweden (to the
extent applicable), respectively, to be filed with or furnished to the Securities Authorities, Nasdaq, Nasdaq Sweden and disseminated to each DevvStream Shareholder and other Person that is required by Law or otherwise to receive
a copy thereof.
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(b) DevvStream
will ensure that, as of the date of the DevvStream Circular, the DevvStream Circular complies in all material respects with applicable Law, does not contain any Misrepresentation (other than with respect to any information
relating to and furnished in writing by the Company or Southern for inclusion in the DevvStream Circular) and provides the DevvStream Shareholders with sufficient information to permit them to form a reasoned judgement concerning
the matters to be placed before the DevvStream Meeting. Without limiting the generality of the foregoing, the DevvStream Circular must include: (i) a copy of the DevvStream Fairness Opinion; (ii) a statement that the DevvStream
Board has received the DevvStream Fairness Opinion; (iii) a statement that the DevvStream Board has unanimously, after consultation with its legal and financial advisors, determined (A) that the Transactions are fair, from a
financial point of view, to the DevvStream Shareholders; (B) that the Transactions are in the best interests of DevvStream; and (C) the DevvStream Board Recommendation; and (iv) a statement that each of the DevvStream Core
Securityholders as of the date of this Agreement intends to vote all of such Person’s DevvStream Shares in favor of the DevvStream Resolutions subject to the terms of the DevvStream Support & Lock-Up Agreements.
(c) DevvStream
will allow the Company and Southern, and their respective legal counsel, a reasonable opportunity to review and comment on drafts of the DevvStream Circular and other related documents prior to filing the DevvStream Circular with
applicable Securities Authorities or Governmental Authorities and mailing the DevvStream Circular to the DevvStream Shareholders, and will incorporate therein all reasonable comments made by the Company and Southern and their
respective legal counsel. DevvStream agrees that all information relating solely to the Company or Southern that is furnished in writing by or on behalf of the Company or Southern for inclusion in the DevvStream Circular or other
related documents must be in a form and content satisfactory to the Company or Southern, as applicable, acting reasonably. DevvStream shall provide the Company and Southern with a final copy of the DevvStream Circular prior to
mailing to the applicable DevvStream Shareholders. DevvStream shall notify the Company and Southern promptly of any request from any Security Authority or any other Governmental Authority relating to the DevvStream Circular and
shall promptly make available to the Company and Southern copies of all documents, correspondence and summary of discussions between it or any of its Representatives, on the one hand, and any Securities Authority or other
Governmental Authority, on the other hand, with respect to the DevvStream Circular. DevvStream shall respond as promptly as reasonably practicable to any correspondence with respect to the DevvStream Circular or the DevvStream
Meeting from any Securities Authority or the staff of a Securities Authority, and shall give the Company and Southern and their respective legal counsel a reasonable opportunity to review and comment on any such response prior to
submitting it to any Securities Authority or the staff of a Securities Authority, and shall give reasonable consideration to any comments made thereon by the Company and Southern and their respective legal counsel.
(d) The
Company and Southern will provide to DevvStream in writing all information concerning the Company and Southern, respectively, reasonably requested by DevvStream and required by Law (as may be modified by any exemptive relief
granted by the Securities Authorities) to be included by DevvStream in the DevvStream Circular or other related documents, and will ensure that such information does not contain any Misrepresentation. The Parties will also
cooperate in the preparation of all other information that may concern the Company, Southern and DevvStream as reasonably requested by DevvStream and required by Law (including pro forma financial statements and any required
reconciliations or adjustments, as applicable). The Company, Southern and DevvStream shall use their commercially reasonable efforts to obtain any necessary consents from any of their respective auditors and any other advisors to
the use of any financial, technical or other expert information required to be included in the DevvStream Circular and to the identification in the DevvStream Circular of each such advisor.
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(e) The
Company, Southern and DevvStream will promptly notify each other if any of them becomes aware that the DevvStream Circular contains a Misrepresentation or otherwise requires an amendment or supplement. The Parties will cooperate
in the preparation of any such amendment or supplement as required or appropriate and DevvStream will promptly mail, file or otherwise publicly disseminate any such amendment or supplement to those Persons to whom the DevvStream
Circular was sent and, if required by the Court or by Law, file the same with the Securities Authorities or any other Governmental Authority as required.
ARTICLE III
THE MERGERS
3.1 Implementation of the Mergers
(a) On
the Closing Date, the Parties shall cause the Mergers to be consummated by:
(i) filing (A) a certificate of merger with the Secretary of State of the State of Delaware (the “Southern Certificate of Merger”) in accordance with the
DGCL and (B) articles of merger with the Secretary of State of the State of Louisiana (the “Southern Articles of Merger”) in accordance with the LBCA; and
(ii) filing a certificate of merger with the Secretary of State of the State of Delaware (the “DevvStream Certificate of Merger” and, together with the
Southern Certificate of Merger and Southern Articles of Merger, the “Merger Certificates”) in accordance with the DGCL.
(b) The
Mergers shall become effective at such time as the Merger Certificates are duly filed with the applicable Secretaries of State, or at such later time as may be agreed by the Parties and specified in the Merger Certificates (the
time the Mergers become effective being the “Effective Time”).
(c) At
the Effective Time, Southern Merger Sub shall be merged with and into Southern. As a result of the Southern Merger, the separate corporate existence of Southern Merger Sub shall cease and Southern shall continue as the surviving
corporation (the “Southern Surviving Corporation”). All the property, rights, privileges, agreements, immunities, powers, franchises, licenses and authority of Southern
and Southern Merger Sub shall vest in the Southern Surviving Corporation, and all debts, liabilities, obligations, restrictions, disabilities and duties of each of Southern and Southern Merger Sub shall become the debts,
liabilities, obligations, restrictions, disabilities and duties of the Southern Surviving Corporation.
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(d) At
the Effective Time, DevvStream Merger Sub shall be merged with and into DevvStream. As a result of the DevvStream Merger, the separate corporate existence of DevvStream Merger Sub shall cease and DevvStream shall continue as the
surviving corporation (the “DevvStream Surviving Corporation” and, together with the Southern Surviving Corporation, the “Surviving
Corporations”). All the property, rights, privileges, agreements, immunities, powers, franchises, licenses and authority of DevvStream and DevvStream Merger Sub shall vest in the DevvStream Surviving Corporation,
and all debts, liabilities, obligations, restrictions, disabilities and duties of each of DevvStream and DevvStream Merger Sub shall become the debts, liabilities, obligations, restrictions, disabilities and duties of the
DevvStream Surviving Corporation.
3.2 Charter Documents of the Surviving Corporations.
(a) At
the Effective Time, the articles of incorporation and bylaws of Southern, each as in effect immediately prior to the Effective Time, shall be amended and restated to be in substantially the form of the certificate of incorporation
and bylaws, respectively, of Southern Merger Sub, each as in effect immediately prior to the Effective Time, except that the name of the Southern Surviving Corporation shall be amended to a name mutually acceptable to the Company
and Southern.
(b) At
the Effective Time, the certificate of incorporation and bylaws of DevvStream, each as in effect immediately prior to the Effective Time (and following the Domestication and, if applicable, the Pre-Closing Reorganization), shall
be amended and restated to be in substantially the form of the certificate of incorporation and bylaws, respectively, of DevvStream Merger Sub, each as in effect immediately prior to the Effective Time.
3.3 Directors and Officers of Surviving Corporation. The directors of Southern Merger Sub and DevvStream Merger Sub immediately prior to the Effective Time shall be the directors of the
Southern Surviving Corporation and the DevvStream Surviving Corporation, respectively, until their respective successors are duly appointed or elected and qualified, or until their earlier death, resignation or removal. The officers
of Southern and DevvStream immediately prior to the Effective Time shall be the officers of the Southern Surviving Corporation and the DevvStream Surviving Corporation, respectively, until their respective successors are duly elected
or appointed and qualified, or until their earlier death, resignation or removal.
3.4 Registration Statement.
(a) As
promptly as practicable after the execution of this Agreement, the Company, Southern and DevvStream shall prepare, and the Company shall file with the SEC, a registration statement on Form S-4 (as amended or supplemented from time
to time, and including the proxy statement/prospectus contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of the
Company Common Shares to be issued in the Mergers, which proxy statement/prospectus included in the Registration Statement will also constitute the DevvStream Circular and the Company Proxy Statement.
(b) The
Company shall use its reasonable best efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as
is necessary to consummate the Mergers.
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(c) Each
of the Company, Southern and DevvStream shall furnish all information concerning it and its Affiliates as may reasonably be requested by the other Parties or that is required for the Registration Statement. Each Party shall use
commercially reasonable efforts to promptly provide responses to the SEC with respect to all comments of the SEC received on the Registration Statement. The Company shall promptly notify Southern and DevvStream of the receipt of
any comments from the SEC and of any request by the SEC for amendments or supplements to the Registration Statement or for additional information, and shall provide Southern and DevvStream with copies of all correspondence between
the Company and the SEC with respect to the Registration Statement.
(d) If
at any time prior to the Effective Time any information relating to the Company, Southern or DevvStream, or any of their respective Affiliates, officers or directors, should be discovered by the Company, Southern or DevvStream
which should be set forth in an amendment or supplement to the Registration Statement, so that the Registration Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement
describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the shareholders of DevvStream and Southern (and the Company, if applicable).
3.5 The Company Meeting; Proxy Statement.
(a) As
promptly as practicable after the Registration Statement is declared effective under the Securities Act, the Company shall: (i) give notice of and convene and hold a special meeting of the Company Shareholders (the “Company Meeting”) in accordance with the Company’s Organizational Documents and applicable Law, for the purposes of obtaining the Required Company Shareholder Approval and,
if applicable, any approvals related thereto and providing its shareholders with the opportunity to elect to exercise their dissent rights (if applicable); and (ii) solicit proxies from the Company Shareholders to vote in favor of
the Company Resolutions.
(b) The
Company shall not adjourn, postpone or cancel (or propose the adjournment, postponement or cancellation of) the Company Meeting without the prior written consent of Southern and DevvStream (such consent not to be unreasonably
withheld, delayed or conditioned), except: (i) as required for quorum purposes (in which case the Company Meeting will be adjourned and not cancelled), (ii) as reasonably required by Law or by a Governmental Authority, (iii) as
expressly permitted by this Agreement, or (iv) for adjournments or postponements of not more than ten (10) Business Days in the aggregate for the purposes of attempting to solicit proxies to obtain the requisite approval of the
Company Resolutions if such requisite approval would not be expected to be obtained without such adjournment or postponement and such adjournments and postponements would not result in the Company Meeting being held on a date that
would prevent the Effective Date from occurring prior to the Outside Date.
(c) The
Company shall use its commercially reasonable efforts to solicit proxies in favor of the approval of the Company Resolutions and against any resolution submitted by any Company Shareholder that is inconsistent with the Company
Resolutions and the completion of any of the Transactions.
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(d) The
Company shall: (i) consult with Southern and DevvStream in fixing the date of the Company Meeting and the record date of the Company Meeting; (ii) promptly provide Southern and DevvStream with copies of or access to information
regarding the Company Meeting generated by any transfer agent, dealer or proxy solicitation services firm, as reasonably requested from time to time by Southern or DevvStream; and (iii) give notice to Southern and DevvStream of
the Company Meeting and allow Representatives of Southern and DevvStream to attend the Company Meeting.
(e) The
Company shall, with the assistance of Southern and DevvStream, prepare a proxy statement (the “Company Proxy Statement”) (which shall be included as part of the
Registration Statement) relating to the Company Meeting and the Company Resolutions. The Company will ensure that, as of the date of the Company Proxy Statement, the Company Proxy Statement complies in all material respects with
applicable Law (including the Exchange Act and the rules and regulations promulgated thereunder), does not contain any Misrepresentation (other than with respect to any information relating to and furnished in writing by Southern
or DevvStream for inclusion in the Company Proxy Statement) and provides the Company Shareholders with sufficient information to permit them to form a reasoned judgement concerning the matters to be placed before the Company
Meeting.
(f) Without
limiting the generality of the foregoing, the Company Proxy Statement must include: (i) a statement that the Company Board has unanimously (A) determined that the Transactions are fair to the Company and the Company Shareholders
and in the best interests of the Company and the Company Shareholders, and (B) the Company Board Recommendation; and (ii) a statement that each of the Company Core Securityholders intends to vote all of such Person’s Company
Common Shares in favor of the Company Resolutions subject to the terms of the Company Support & Lock-Up Agreements.
(g) The
Company will allow Southern and DevvStream, and their respective legal counsel, a reasonable opportunity to review and comment on drafts of the Company Proxy Statement and other related documents prior to filing the Company Proxy
Statement with the SEC and mailing the Company Proxy Statement to the Company Shareholders, and will incorporate therein all reasonable comments made by Southern and DevvStream and their respective legal counsel. The Company shall
respond as promptly as reasonably practicable to any correspondence with respect to the Company Proxy Statement or the Company Meeting from the SEC or the staff of the SEC, and shall give Southern and DevvStream and their
respective legal counsel a reasonable opportunity to review and comment on any such response prior to submitting it to the SEC or the staff of the SEC.
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3.6 Intended US Tax Treatment. For U.S. federal income tax purposes, each of the Mergers is intended to be treated as a “reorganization” within the meaning of Section 368(a) of the Code, and it
is intended that each of the Parties be a “party to the reorganization” with respect to the applicable Merger within the meaning of Section 368(b) (the “Intended US Tax Treatment”).
Each of the Parties hereby (i) adopts this Agreement as a “plan of reorganization” within the meaning of Section 1.368-2(g) of the United States Treasury Regulations, (ii) agrees to file and retain such information as shall be
required under Section 1.368-3 of the United States Treasury Regulations with respect to the applicable Merger, (iii) agrees to file all Tax and other informational returns on a basis consistent with such characterization and not take
any inconsistent position on any Tax Return or in any Proceeding with any Taxing Authority, except if otherwise required by a “determination” within the meaning of Section 1313(a) of the Code and (iv) shall use its reasonable best
efforts to cause the Mergers to qualify for the Intended US Tax Treatment. Notwithstanding the foregoing or anything else to the contrary contained in this Agreement, the Parties acknowledge and agree that no party is making any
representation or warranty as to the qualification of any Merger as a reorganization under Section 368 of the Code or as to the effect, if any, that any transaction consummated on, after or prior to the Mergers has or may have on any
such reorganization status. Each of the parties acknowledges and agrees that each (A) has had the opportunity to obtain independent legal and tax advice with respect to the Mergers, and (B) is responsible for any adverse Tax
consequences that may result if any Merger is determined not to qualify as a reorganization under Section 368 of the Code.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SOUTHERN
Except as set forth in the disclosure schedules delivered by Southern to the Company and DevvStream on the date
hereof (the “Southern Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer, Southern
represents and warrants to the other Parties that each of the following representations are true and correct as of the date of this Agreement and as of the Closing Date (except as to any representations and warranties that
specifically relate to an earlier date, in which case such representations and warranties were true and correct as of such earlier date):
4.1 Organization and Standing. Southern is a corporation duly organized, validly existing and in good standing under the laws of the state of the State of Louisiana, and has the requisite
corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Southern is duly qualified or licensed and in good standing to do business in each jurisdiction in which the
character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified or licensed or in good standing has
not and would not, individually or in the aggregate, reasonably be expected to have (i) a Material Adverse Effect on Southern or (ii) a material adverse effect on the ability of Southern to enter into this Agreement or to consummate
the Transactions (clause (i) or (ii), a “Southern Material
Adverse Effect”). Southern has heretofore made available to the Company and DevvStream accurate and complete copies of its Organizational Documents, as currently in effect as of the date hereof. Southern is not in
violation of any provision of its Organizational Documents in any material respect. Southern is not the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.
4.2 Authorization; Binding Agreement.
(a) Southern
has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is a party, to perform Southern’s obligations hereunder and thereunder and to consummate the
Transactions. The execution and delivery of this Agreement and each Ancillary Document to which Southern is or is required to be a party and the consummation of the Transactions (i) have been duly and validly authorized by the
Southern Board and, where applicable, the Southern Shareholders, in accordance with Southern’s Organizational Documents, any applicable Law or any Contract to which Southern or the Southern Shareholders are a party or by which it
or their securities are bound, and (ii) no other corporate proceedings, other than as set forth elsewhere in this Agreement, on the part of Southern are necessary to authorize the execution and delivery of this Agreement and each
Ancillary Document to which it is a party or to consummate the Transactions.
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(b) Southern’s
Board has by resolutions duly adopted at a meeting duly called and held, as of the date of this Agreement, (i) determined that this Agreement, the Merger and the other Transactions are advisable, fair to, and in the best interests
of, the Southern Shareholders, (ii) approved, among other things, this Agreement and the Ancillary Documents to which it is a party and the Transactions, including the Merger, on the terms and subject to the conditions of this
Agreement and in accordance with applicable Law. The Southern Shareholders as of the date of this Agreement has approved this Agreement, the Ancillary Documents and the Transactions, including the Merger, in accordance with
applicable Law and on the terms and subject to the conditions of this Agreement. No additional approval or vote of any holders of voting or other equity interests of Southern would then be necessary to approve and adopt this
Agreement and the Ancillary Documents and approve the Transactions.
(c) This
Agreement has been, and each Ancillary Document to which Southern is a party shall be, when delivered, duly and validly executed and delivered by Southern and, assuming the due authorization, execution and delivery of this
Agreement and such Ancillary Documents by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of Southern, enforceable against Southern in accordance with
its terms, except to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting the enforcement of creditors’
rights generally or by any applicable statute of limitation or by any valid defense of set-off or counterclaim, and the fact that equitable remedies or relief (including the remedy of specific performance) are subject to the
discretion of the court from which such relief may be sought (collectively, the “Enforceability Exceptions”).
4.3 Governmental Approvals. No Consent of or with any Governmental Authority on the part of Southern is required to be obtained or made in connection with the execution, delivery or performance
by Southern of this Agreement and each Ancillary Document to which it is a party or the consummation by Southern of the Transactions, other than (a) such filings and approvals as are expressly contemplated by this Agreement, including
the filing of the Merger Certificates and filings necessary for the Required Regulatory Approvals, (b) any filings required with SEC, Nasdaq, Nasdaq Sweden and other applicable Canadian securities regulatory authorities with respect
to the Transactions, (c) applicable requirements, if any, of the Securities Act, the Exchange Act, or any state “blue sky” securities laws, and the rules and regulations thereunder, (d) a post-closing notification pursuant to the
Investment Canada Act, and (e) where the failure to obtain or make such Consents or to make such filings or notifications, would not, individually or in the aggregate, reasonably be expected to have a Southern Material Adverse Effect.
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4.4 Non-Contravention. The execution and delivery by Southern of this Agreement and each Ancillary Document to which it is a party, the consummation by Southern of the transactions contemplated
hereby and thereby, and compliance by Southern with any of the provisions hereof and thereof, will not (a) contravene or conflict with or violate any provision of Southern’s Organizational Documents, (b) contravene or conflict with or
constitute a violation of any provisions of Law or Order binding upon or applicable to Southern, (c) subject to obtaining the Consents from Governmental Authorities referred to in Section
4.3 hereof, and the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been satisfied, conflict with or violate in any material respect any Law, Order or
Consent applicable to Southern, , or any of its properties or assets, except for violations which would not prevent or delay the consummation of the Transactions, or (d) (i) violate, conflict with or result in a breach of, (ii) result
in a default (or an event which, with notice or lapse of time or both, would constitute a material default) under, (iii) give rise to any right of termination, cancellation or acceleration under, (iv) give rise to any obligation to
make material payments or provide material compensation under, (v) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Southern under, (vi) give rise to any obligation to obtain
any material third party Consent or provide any notice to any Person, or (vii) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the
maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any Southern Material Contract, except, in each case, where such conflict,
violation, breach, default, termination, cancellation, modification, acceleration, obligation, creation, or default would not, individually or in the aggregate, reasonably be expected to have a Southern Material Adverse Effect.
4.5 Capitalization.
(a) Southern
is authorized to issue up to 100,000,000 shares of capital stock, consisting of 100,000,000 Southern Shares. The issued and outstanding Southern Shares as of the date of this Agreement are set forth on Section 4.5(a) of the Southern Disclosure Schedules. All outstanding Southern Shares are duly authorized, are fully paid and non-assessable and are not subject to or issued in violation of any
purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, or any Contract to which Southern is a party or by which it or its securities are bound.
Southern does not hold any shares or other equity interests of Southern in its treasury. None of the outstanding Southern Shares have been issued in violation of any applicable securities Law.
(b) Except
as set forth in the Southern Lock-Up Agreement, there are no outstanding or authorized options, warrants, puts, calls, restricted stock, restricted stock units, phantom stock, profit participation rights, equity appreciation
rights, phantom equity rights, other equity or equity‑based awards or other similar rights with respect to Southern.
(c) As
of the date hereof, there are no other equity or voting interests in, or any Southern Convertible Securities, or preemptive rights or other outstanding rights, options, warrants, subscriptions, puts, calls, restricted stock,
restricted stock units, phantom stock, stock appreciation, profit participation, conversion rights or similar equity or equity-based rights, interests, agreements or commitments of any rights of first refusal or first offer, nor
are there any Contracts, commitments, arrangements or restrictions to which Southern or, to the Knowledge of Southern, any of its shareholders is a party or bound relating to any equity securities of Southern, whether or not
outstanding.
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(d) There
are no voting trusts, proxies, shareholder agreements or any other agreements or understandings with respect to the voting of Southern’s equity interests. There are no outstanding contractual obligations of Southern to repurchase,
redeem or otherwise acquire any equity interests or securities of Southern, nor has Southern granted any registration rights to any Person with respect to Southern’s equity securities. All of the Southern Securities have been
granted, offered, sold and issued in compliance with all applicable securities Laws
(e) No
equity interests of Southern are issuable, and no rights in connection with any interests, warrants, rights, options or other securities of Southern accelerate or otherwise become triggered (whether as to vesting, exercisability,
convertibility or otherwise) as a result of the Transactions.
(f) Except
as disclosed in the Southern Financial Statements, Southern has not declared or paid any distribution or dividend in respect of its equity interests and has not repurchased, redeemed or otherwise acquired any equity interests of
Southern, and the Southern Board has not authorized any of the foregoing.
4.6 Subsidiaries.
(a) As
of the date of this Agreement, Southern does not have any Subsidiaries.
(b) As
of the date of this Agreement, Southern is not a participant in any joint venture, partnership or similar arrangement.
(c) There
are no outstanding contractual obligations of Southern to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.
4.7 Financials.
(a) The
audited financial statements of Southern, consisting of the balance sheet as of July 31, 2025, and the related statements of loss, shareholder's equity (deficiency), and cash flows for the period from inception on May 15, 2025 to
July 31, 2025, and the related notes thereto (the “Initial Southern Financial Statements”), present fairly, in all material respects, the financial condition, assets and
liabilities of Southern as of such date and the results of operations of Southern for the period set forth therein in accordance with GAAP have been audited in accordance with the standards of the PCAOB, have been prepared on a
consistent basis (throughout the period covered thereby), and are consistent with the books and records of Southern. The Required Financial Statements, as and when delivered pursuant to Section 8.16, will present fairly, in all material respects, the financial condition, assets and liabilities of Southern as of such dates and the results of operations of Southern for such periods set
forth therein in accordance with Southern’s standard historical accounting principles, policies and practices and will be prepared on a consistent basis (throughout the periods covered thereby) and consistent with the books and
records of Southern (the Initial Southern Financial Statements and the Required Financial Statements, collectively, the “Southern Financial Statements”).
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(b) The
Initial Southern Financial Statements were, and the Required Financial Statements (as and when delivered to the Company and DevvStream) will be: (i) prepared from the books and records of Southern; and (ii) prepared in accordance
with Southern’s standard historical accounting principles, policies and practices, applied on a consistent basis throughout the periods involved (subject, in the case of unaudited financial statements, to the absence of footnotes
and normal year-end adjustments). Furthermore, the Initial Southern Financial Statements fairly present, and the Required Financial Statements will fairly present, in all material respects, the financial position of Southern as of
the dates thereof and its results of operations and cash flows for the periods then ended (subject, in the case of unaudited financial statements, to the absence of footnotes and normal year-end adjustments, none of which would be
expected to be material individually or in the aggregate).
(c) The
books of account and other financial records of Southern have been kept accurately in all material respects in the ordinary course of business, and the transactions entered therein represent bona fide transactions.
(d) Except
as and to the extent reflected or reserved against in Southern Financial Statements or as incurred in connection with this Agreement, Southern has not incurred any Liabilities or obligations of the type required to be reflected on
a balance sheet in accordance with Southern’s standard historical accounting principles, policies and practices that are not adequately reflected or reserved on or provided for in Southern Financial Statements, other than (i)
Liabilities of the type required to be reflected on a balance sheet in accordance with Southern’s standard historical accounting principles, policies and practices that have been incurred since the Latest Balance Sheet Date in the
ordinary course of business, (ii) Liabilities that are not, individually or in the aggregate, material in amount or (iii) Liabilities incurred in connection with or as permitted by this Agreement, the Ancillary Documents or the
Transactions. All debts and Liabilities, fixed or contingent, which should be included in accordance with Southern’s standard historical accounting principles, policies and practices on a balance sheet are included in all material
respects in the Southern Financial Statements as of the date of such Southern Financial Statements. Southern has no off-balance sheet arrangements.
(e) Since
its incorporation, Southern has not conducted any business activities other than activities directed toward the development of the Plant.
4.8 Absence of Certain Changes. Since the Latest Balance Sheet Date, (a) Southern has conducted its business in the ordinary course and consistent with past practice in all material respects
and (b) Southern has not taken any action that, if taken after the date of this Agreement and prior to the Closing, would require the consent of the Company and DevvStream pursuant to Section
8.3.
4.9 Compliance with Laws. Southern is not, and since its incorporation has never been, in material conflict or material non-compliance with, or in material default or violation of any
applicable Laws. Since its formation, Southern (i) has not received any written or, to the Knowledge of Southern, oral notice of any material conflict or non-compliance with, or material default or violation of, any applicable Laws by
which it or any of its respective properties, assets, employees or other individual service providers (solely in such individuals’ capacity as service providers to Southern), business, products or operations are or were bound or
affected, (ii) has been subjected to any investigation by a Governmental Authority regarding any actual or alleged violation of or failure on the part of Southern to comply with any applicable Law, (iii) has had claims filed against
it with any Governmental Authority alleging any failure by Southern to comply with applicable Law and (iv) has not made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged act or
omission arising under or relating to any noncompliance with any applicable Law, in the case of clauses (i) through (iii), except as would not, or would not reasonably be expected to, be material to Southern.
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4.10 Southern Permits Southern holds all material licenses and Permits necessary to lawfully own, lease and conduct in all material respects their respective business as presently conducted and
to own, lease and operate their respective assets and properties (collectively, the “Southern Permits”). All the Southern Permits are in full force and effect and not subject
to, or, to the Knowledge of Southern, threatened to be subject to, any revocation or modification Proceeding, or any suspension or termination, as a result of, or in connection with, the consummation of the Transactions, and Southern
is conducting business in compliance in all material respects with the Southern Permits. Southern is not in violation in any material respect of the terms of the Southern Permits, and no Proceeding is pending or, to the Knowledge of
Southern, threatened, to suspend, revoke, withdraw, modify or limit any such Southern Permit in a manner that has had or would reasonably be expected to have a material impact on the ability of Southern, as applicable, to use such
Southern Permit or conduct its business, as applicable.
4.11 Carbon Credits. Southern has not, as of the date hereof, created any security interest or encumbrance in any Carbon Credits that are presently owned, or in the future will be owned, by
Southern, in favor of any third party.
4.12 Litigation. Since Southern’s incorporation, there have been, and there are, no Actions or Orders of any nature currently pending or, to Southern’s Knowledge, threatened against Southern,
and no such Action or Order has been brought against Southern, or any of its current or former directors, officers or securityholders, business, equity securities, or assets, or employees or other individual service providers in their
capacities as such that would, individually or in the aggregate, be material to Southern.
4.13 Material Contracts.
(a) Section 4.13(a) of the Southern Disclosure Schedules sets forth a true, correct and complete list of the Southern Material Contracts, as of the date hereof, a true, correct
and complete copy (including written summaries of oral Contracts) of which, in each case, has been made available to the Company and DevvStream. For purposes of this Agreement, “Southern
Material Contract” means any contract, together with each Southern Benefit Plan that is a Contract, to which Southern is a party or by which Southern or any of its properties or assets are bound or affected that:
(i) contains covenants that limit or restrict the ability of Southern (A) to compete in any line of business or with any Person or in any geographic area or to sell, receive or provide any service or product or
solicit any Person, including any non-competition covenants, non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or similar provision with respect to any Person or (B) to
purchase or acquire an interest in any other Person;
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(ii) involves any joint venture, partnership or similar agreement;
(iii) relates to the voting or control of the equity interests of Southern or the election of directors of Southern (other than the Organizational Documents of Southern);
(iv) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of Southern having an outstanding principal amount in excess of $50,000;
(v) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $100,000 or shares or other equity interests of Southern or another
Person;
(vi) relates to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity or its business or material assets or the sale of Southern, its
business or material assets;
(vii) by its terms, individually or with all related Contracts, is reasonably expected to call for aggregate payments or receipts by Southern or any of its Subsidiaries under such Contract or Contracts of at least
$200,000 per year or $1,000,000 in the aggregate;
(viii) is any carbon streaming agreement;
(ix) is any strategic partnership agreement;
(x) is with (A) any Governmental Authority or (B) any Southern Related Person;
(xi) is a settlement, conciliation or similar agreement pursuant to which the Southern will have any material outstanding obligation after the date of this Agreement;
(xii) provides for any severance, retention, transaction or change in control bonus or equity, equity-based or phantom equity arrangement;
(xiii) obligates Southern to provide continuing indemnification or a guarantee of obligations that would be expected to result in payments to a third party after the date hereof in excess of $100,000;
(xiv) provides for the employment or engagement of any director, officer, employee or individual service provider, excluding offer letters providing for at-will employment that can be terminated without any
post-termination Liabilities;
(xv) is a Labor Agreement;
(xvi) obligates Southern to make any capital commitment or expenditure in excess of $100,000 (including pursuant to any joint venture);
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(xvii) (A) entered into with any third-party broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising partner or service
provider and (B) are material to the business of Southern;
(xviii) provides for any guaranty, direct or indirect, of any obligation of a third party (other than Southern);
(xix) constitutes a lease or master lease of personal property reasonably likely to result in annual payments of $25,000 or more in a 12-month period;
(xx) constitutes any contract providing for (A) the grant of any preferential rights of first offer or first refusal to purchase or lease any material asset of Southern or (B) any exclusive right to sell or
distribute, or otherwise relating to the sale or distribution of, any product or service of Southern;
(xxi) establishes any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture,
partnership or limited liability company;
(xxii) constitutes any Contract that obligates Southern to make any loans, advances or capital contributions to, or investments in, any Person other than any loan or capital contribution to, or investment in, (A)
Southern, (B) any Person (other than an officer, director or employee of Southern) that is less than $1,000,000 to such Person or (C) any officer, director or employee of Southern that is less than $50,000 to such person;
(xxiii) constitutes any obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, all or substantially all of the assets or stock of other persons;
(xxiv) constitutes any Southern IP Agreements (other than agreements for Off-the-Shelf Software);
(xxv) provides any third party a power of attorney;
(xxvi) relates to the future disposition or acquisition by Southern of (A) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (B) any material
assets or properties, except for any agreement related to the Transactions; or
(xxvii) involves the payment of any earnout or similar contingent payment on or after the date of this Agreement.
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(b) With
respect to the Southern Material Contracts: (i) each Southern Material Contract is valid and binding and enforceable in all respects against Southern and, to the Knowledge of Southern, each other party thereto, and is in full
force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions); (ii) the consummation of the Transactions will not affect the validity or enforceability of the Southern Material
Contracts; (iii) neither Southern is in breach or default in any material respect, and to the Knowledge of Southern, no condition or event has occurred that with the passage of time or giving of notice or both would constitute a
material breach or default by Southern, or permit termination or acceleration by the other party thereto, under such Southern Material Contract; (iv) to the Knowledge of Southern, no other party to such Southern Material Contract
is in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a material breach or default by such other party, or permit termination or
acceleration by Southern, under such Southern Material Contract; (v) Southern has not received neither written nor, to Southern’s Knowledge, oral notice of an intention by any party to any such Southern Material Contract that
provides for a continuing obligation by any party thereto to terminate such Southern Material Contract or amend the terms thereof, other than modifications in the ordinary course of business that, individually or in aggregate, are
not reasonably expected to adversely affect Southern in any material respect; and (vi) Southern has not waived any of its respective material rights under any such Southern Material Contract.
4.14 Intellectual Property.
(a) Section 4.14(a) of the Southern Disclosure Schedules sets forth: (i) all registered Patents, Trademarks, Copyrights and Internet Assets and applications owned by Southern or
otherwise used or held for use by Southern in which Southern is the owner, applicant or assignee (“Southern Registered IP”); and (ii) all material unregistered
Intellectual Property, including proprietary Software, owned or purported to be owned by Southern (for material Trade Secrets, only a general description shall be disclosed).
(b) Section 4.14(b) of the Southern Disclosure Schedules sets forth all material Intellectual Property licenses, sublicenses and other agreements or permissions (“Southern IP Licenses”) (other than Off-the-Shelf Licenses, which are not required to be listed, although such licenses are “Southern
IP Licenses” as that term is used herein), under which Southern is a licensee or otherwise is authorized to use or practice or have rights to any Intellectual Property of any Person that is (i) incorporated into, or
used in the authorship, invention, development, delivery, hosting or distribution of, the Southern Products; or (ii) used or held for use by Southern in the conduct of its business.
(c) Southern
either owns or has valid and enforceable rights under a Southern IP License to use all Intellectual Property that is necessary and sufficient for, or used or held for use by Southern in, the conduct of its business, in each case
free and clear of any Liens (other than Permitted Liens). All of the Southern Registered IP is in full force and effect, subsisting, valid and enforceable. Southern (i) is the sole and exclusive owner of all right, title and
interest in and to the Owned IP, in each case free and clear of any Liens (other than Permitted Liens); and (ii) has a valid and enforceable license or other rights to use all Licensed IP. Southern has not dedicated to the public
or otherwise allowed to fall into the public domain any material Owned IP.
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(d) Southern
has provided the Company and DevvStream with true and complete copies of all material Southern IP Agreements, including all modifications, amendments and supplements thereto and waivers thereunder. Neither Southern nor, to the
Knowledge of Southern, any other party thereto is, or is alleged to be, in breach of or default under, or has provided or received any notice of breach of, default under, or intention to terminate (including by non-renewal), any
Southern IP Agreement. Southern has entered into binding, valid and enforceable, written Contracts with each current and former employee and independent contractor who is or was involved in or has contributed to the invention,
creation, or development of any Intellectual Property during the course of employment or engagement with Southern whereby such employee or independent contractor (i) acknowledges Southern’s exclusive ownership of all Intellectual
Property invented, created, or developed by such employee or independent contractor within the scope of his or her employment or engagement with Southern; (ii) grants to Southern a present, irrevocable assignment of any ownership
interest such employee or independent contractor may have in or to such Intellectual Property, to the extent such Intellectual Property does not constitute a “work made for hire” under applicable Law; and (iii) irrevocably waives
any right or interest, including any moral rights, regarding any such Intellectual Property, to the extent permitted by applicable Law. All material assignments and other instruments necessary to establish, record and perfect
Southern’s ownership interest in the Southern Registered IP have been validly executed, delivered and filed with the relevant Governmental Authorities and authorized registrars. Neither the execution, delivery or performance of
this Agreement, nor the consummation of the Transactions, will result in the loss or impairment of, or require the consent of any other Person in respect of, Southern’s right to own or use any Intellectual Property.
(e) The
Southern IP Licenses include all of the material licenses, sublicenses and other agreements or permissions necessary to operate Southern as presently conducted.
(f) No
Action is pending or, to Southern’s Knowledge, threatened against Southern that challenges the validity, enforceability, ownership or right to use, sell, license or sublicense, or that otherwise relates to, any Intellectual
Property currently licensed, used or held for use by the Southern, nor, to the Knowledge of Southern, is there any reasonable basis for any such Action. Since incorporation, Southern has not received any written or, to the
Knowledge of Southern, notice or claim asserting or suggesting that any infringement, misappropriation, violation, dilution or unauthorized use of the Intellectual Property of any other Person is or may be occurring or has or may
have occurred, as a consequence of the business activities of Southern, nor to the Knowledge of Southern is there any reasonable basis therefor. There are no Orders to which Southern is a party or its otherwise bound that (i)
restrict the rights of Southern to use, transfer, license or enforce any Intellectual Property owned by Southern, (ii) restrict the conduct of the business of Southern in order to accommodate a third Person’s Intellectual Property
or (iii) grant any third Person any right with respect to any Intellectual Property owned by Southern. Southern is not currently infringing, or has, since incorporation, infringed, misappropriated or violated any Intellectual
Property of any other Person in connection with the ownership, use or license of any Intellectual Property owned or purported to be owned by Southern or, to the Knowledge of Southern, otherwise in connection with the conduct of
the businesses of Southern. To Southern’s Knowledge, no third party is currently, or in the past five (5) years has been, infringing upon, misappropriating or otherwise violating any Intellectual Property owned, licensed by,
licensed to or otherwise used or held for use by Southern.
(g) No
funding from any Governmental Authority or facilities of a university, college, other educational institution or non-profit organization was used in the development of the Owned IP, and no Governmental Authority, university,
college, other educational institution or non-profit organization has a claim or right to claim title to any Owned IP.
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(h)
(i) Southern has taken steps consistent with generally accepted industry standards, and in any event no less than all commercially reasonable steps, to safeguard and maintain the secrecy and confidentiality of all
Trade Secrets included in the Owned IP.
(ii) Southern has not authorized the disclosure of any Trade Secret included in the Owned IP, nor has any such Trade Secret been disclosed, in each case other than pursuant to a written and enforceable
non-disclosure agreement.
(iii) There has been no misappropriation of any Trade Secret included in the Owned IP or breach of any obligations of confidentiality with respect to such Trade Secrets.
(i) Neither
the execution, delivery nor performance of this Agreement or any other agreements referred to in this Agreement nor the consummation of any of the Transactions will, with or without notice or lapse of time, directly result in: (i)
a loss of or an Lien on any Owned IP; (ii) a breach of or default under, or right to terminate or suspend performance of, any Southern IP Agreement; (iii) the release, disclosure or delivery of any Trade Secrets within the Owned
IP by or to any escrow agent or other Person; (iv) the grant, assignment or transfer to any other Person of any license or other right or interest under, to or in any Owned IP. Southern will own all right, title and interest in
and to, or otherwise have a license to, all Owned IP and Licensed IP on identical terms and conditions as Southern enjoyed immediately prior to the Closing.
(j) The
Source Code for Software within the Owned IP and the Source Code for Software included in all Southern Products (A) has at all times been maintained in confidence, and has been disclosed only to employees and consultants having a
“need to know” the contents thereof in connection with the performance of their duties and who are bound by confidentiality obligations of customary scope with respect to Source Code; and (B) has not been delivered, licensed or
made available to any escrow agent or other Person, and Southern does not have any duty or obligation to deliver, license or make available such Source Code to any escrow agent or other Person.
(k) Southern
has not (i) used any Open Source Software in such a way that (A) obligates Southern to make any Software within the Owned IP available free of charge, available in source code form, or reverse engineerable, (B) grants or purports
to grant to any third Person any rights or immunities under any Intellectual Property within the Owned IP, or (C) requires any Southern Products or any portion thereof, to be subject to a Copyleft License; or (ii) contributed any
Software within the Owned IP to an open source project or made any such Software available to any other Person under an open source license.
(l) The
Southern Products do not contain any malicious or surreptitious code or device, such as a virus, worm, time or logic bomb, disabling device, Trojan horse or other malicious or surreptitious code designed to: (i) disrupt or damage
any licensee’s use of the Southern Products or related computer systems; (ii) erase, destroy or corrupt any licensee’s files or data; or (iii) bypass any technical security measure, or masquerade as compliant, so as to obtain
access to any of licensee’s hardware or software in contravention of such technical security measures.
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(m) Southern
owns or has a valid license in all of the Southern Systems necessary to operate the business of Southern as currently conducted. Southern has taken commercially reasonable measures to protect and maintain the security of the
Southern Systems and all information stored or contained therein from any unauthorized use, access, interruption or modification by any Person. The Southern Systems (i) operate and perform in all material respects in accordance
with their documentation and as required by the business of Southern as currently conducted; (ii) have not suffered any material persistent substandard performance, breakdown or failure since Southern’s incorporation; (iii) are
free from any material defects; (iv) do not contain any virus, Software or hardware component designed to permit unauthorized access or to disable or otherwise harm or disable any System whether automatically with the passage of
time or under the positive control of a Person; (v) are in good repair and operating condition and are adequate and suitable (including with respect to working condition, license seats, performance and capacity) for the purposes
for which they are currently being used; and (vi) are sufficient to operate the business of Southern after the Closing in substantially the same manner as conducted in the twelve (12) months prior to the Closing and constitute all
of the Systems reasonably necessary to conduct the business of Southern as currently conducted.
4.15 Taxes and Returns.
(a) Southern
has timely filed, or caused to be timely filed, all material Tax Returns required to be filed by it (taking into account all available extensions properly obtained), which such Tax Returns are true, accurate, correct and complete
in all material respects, and has paid, collected or withheld, or caused to be paid, collected or withheld, all material Taxes required to be paid, collected or withheld. Southern has complied in all material respects with all
applicable Laws relating to Taxes.
(b) There
is no Action currently pending or threatened in writing against Southern by a Governmental Authority in a jurisdiction where it does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.
(c) There
are no claims, assessments, audits, examinations, investigations or other Actions by any Taxing Authority in progress or pending against Southern in respect of any Tax, and Southern has not been notified in writing, or to the
Knowledge of Southern, orally, of any proposed Tax claims or assessments against Southern (other than, in each case, claims or assessments for which adequate reserves in the Southern Financial Statements have been established in
accordance with Southern’s standard historical accounting principles, policies and practices) or that any such audit, examination, investigation or other Action is contemplated.
(d) Southern
does not have any liability for Taxes of any other Person (i) under any Tax indemnity, Tax sharing or Tax allocation agreement or any other contractual obligation (excluding for this purpose, agreements entered into in the
ordinary course of business the primary purpose of which is not related to Taxes, such as leases, licenses or credit agreements), (ii) arising from the application of U.S. Treasury Regulations Section 1.1502-6 or any analogous
provision of state, local or non-U.S. Law or (iii) as a transferee or successor, by Contract (excluding for this purpose, Contracts entered into in the ordinary course of business the primary purpose of which is not related to
Taxes, such as leases, licenses or credit agreements) or by operation of Law.
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(e) There
are no Liens with respect to any Taxes upon any of Southern’s assets, other than Liens described in clause (a) of the definition of Permitted Liens.
(f) Southern
has collected or withheld all material Taxes currently required to be collected or withheld by it, and all such Taxes have been paid to the appropriate Governmental Authorities or set aside in appropriate accounts for future
payment when due.
(g) Southern
has no outstanding waivers or extensions of any applicable statute of limitations to assess any material amount of Taxes. There are no outstanding requests by Southern for any extension of time within which to file any Tax Return
or within which to pay any Taxes shown to be due on any Tax Return.
(h) Southern
has not made any change in accounting methods (except as required by a change in Law) or received a ruling from, or signed an agreement with, any Taxing Authority that would reasonably be expected to have a material impact on its
Taxes following the Closing.
(i) Southern
is not, nor has ever been, a member of an “affiliated group” as defined in Section 1504(a) of the Code or any affiliated, combined, unitary, consolidated or similar group under state, local or non-U.S. Law.
(j) Southern
has not constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying (or intended to qualify) in whole or in part for
tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) or Section 361 of the Code.
(k) Southern
is, and has been since its incorporation, treated as a corporation for U.S. federal (and applicable state and local) income Tax purposes and, through the date of this Agreement, is a Tax resident only in its jurisdiction of
formation.
(l) Southern
(and the Company and its Affiliates) will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the
Closing Date as a result of any of the following that occurred or existed on or prior to the Closing (in each case where there is a reference to the Code or Treasury Regulations, including any corresponding or similar provision of
state, local or non-U.S. legal or regulatory requirements): (i) an installment sale or open transaction, (ii) a prepaid amount received or deferred revenue recognized outside the ordinary course of business, (iii) an intercompany
item under Treasury Regulations Section 1.1502-13 or an excess loss account under Treasury Regulations Section 1.1502-19, or (iv) a change in or use of an improper accounting method, including pursuant to Section 481 of the Code.
(m) No
“closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. legal or regulatory requirements), private letter rulings, technical advice memoranda or similar
agreements or rulings have been requested, entered into or issued by any Taxing Authority with respect to Southern which agreement or ruling would be effective after the Closing Date (or, for the avoidance of doubt, that would
require Southern (or the Company or any of its Affiliates) to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the
Closing Date).
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(n) Southern
has not: (i) consented to extend the time in which any Tax may be assessed or collected by any Taxing Authority (other than ordinary course extensions of time to file Tax Returns), which extension is still in effect; or (ii)
entered into or been a party to any “listed transaction” within the meaning of Section 6707A(c)(2) of the Code and Treasury Regulations Section 1.6011-4(b)(2).
(o) Southern
has not taken or agreed to take any action, and does not intend to or plan to take any action, or has any knowledge of any fact or circumstance that could reasonably be expected to prevent the Transactions from qualifying for the
Intended US Tax Treatment (with the exception of any actions specifically contemplated by this Agreement).
4.16 Real Property. The leases set forth on Section 4.16(a)
of the Southern Disclosure Schedule (the “Southern Leases”) are the only Contracts pursuant to which Southern leases any real property. Southern is not a party to, or
under any agreement to become a party to, any lease with respect to real property other than the Southern Leases, copies of which have been provided to the Company and DevvStream. Each Southern Lease is in good standing, creates a
good and valid leasehold estate in the leased properties thereby demised and is in full force and effect without amendment, except as set forth on Section 4.16(a) of the
Southern Disclosure Schedules. With respect to each Southern Lease, (a) such Southern Lease (or a notice in respect of such Southern Lease) has been properly registered in the appropriate land registry office, (b) all rents and
additional rents have been paid, (c) no waiver, indulgence or postponement of the lessee’s obligations has been granted by the lessor, (d) there exists no event of default or event, occurrence, condition or act (including the
purchase of the Southern Shares) which, with the giving of notice, the lapse of time or the happening of any other event or condition, would become a default under such Southern Lease and (e) to the knowledge of Southern, all of
the covenants to be performed by any other party under such Southern Lease have been fully performed.
(b) Each
of the leased properties is adequate and suitable for the purposes for which it is presently being used and Southern has adequate rights of ingress and egress into each of the leased properties for the operation of the business in
the ordinary course. Section 4.16(b) of the Southern Disclosure Schedules sets forth all of the Southern Leases setting out, in respect of each Southern Lease, a
description of the leased premises (by municipal address and proper legal description), the term of the Southern Lease, the rental payments under such Southern Lease (specifying any breakdown of base rent and additional rents),
any rights of renewal and the term thereof, and any restrictions on assignment, change of control of Southern or amalgamation.
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4.17 Personal Property. Each item of Personal Property that is currently owned, used or leased by Southern with a book value or fair market value of greater than Twenty-Five Thousand Dollars
($25,000) is set forth on Section 4.17 of the Southern Disclosure Schedules, along with, to the extent applicable, a list of lease agreements, lease guarantees, security
agreements and other agreements related thereto, including all amendments, terminations and modifications thereof or waivers thereto (“Southern Personal Property Leases”).
Except as would not be material to the Southern, or as set forth in Section 4.17 of the Southern Disclosure Schedules, all such items of Personal Property are in good
operating condition and repair (reasonable wear and tear excepted consistent with the age of such items) and are suitable for their intended use in the business of Southern. The operation of Southern’s business as it is now conducted
or presently proposed to be conducted is not in any material respect dependent upon the right to use the Personal Property of Persons other than Southern, except for such Personal Property that is owned, leased or licensed by or
otherwise contracted to Southern. The Southern Personal Property Leases are valid, binding and enforceable in accordance with their terms and are in full force and effect. No event has occurred that (whether with or without notice,
lapse of time or both or the happening or occurrence of any other event) would constitute a material default on the part of Southern or, to the Knowledge of Southern, any other party under any of the Southern Personal Property Leases,
and Southern has not received notice of any such condition.
4.18 Title to and Sufficiency of Assets. Southern has good and marketable title to, or, in the case of leased or subleased assets, a valid leasehold interest in or right to use, all of its
material assets, free and clear of all Liens other than (a) Permitted Liens, (b) the rights of lessors under leasehold interests and (c) Liens set forth in the Southern Financial Statements (collectively, the “Southern Assets”). The Southern Assets (including Intellectual Property rights and contractual rights) of Southern constitute all of the material assets, rights and properties
that are used in the operation of the business of Southern as it is now conducted or that are used or held by Southern for use in the operation of the business of Southern.
4.19 Employee Matters.
(a) Southern
is not party to, or bound by, any Labor Agreement, and has never been party to, or bound by, any such Contract. There are no unfair labor practice charges, material labor grievances, labor arbitrations, labor strikes, slowdowns,
work stoppages, boycotts, picketing, handbilling, lockouts, or other material labor disputes, or to Southern’s Knowledge threat of any of the foregoing, or, to Southern’s Knowledge, union organizing activity or demand or petition
for representation or certification, by or with respect to any of the employees of Southern, and no such activities or disputes have occurred (including any representation or certification proceedings brought or filed with the
National Labor Relations Board or any other labor relations tribunal or authority) since Southern’s incorporation. No employees of Southern are represented by any labor organization, labor or trade union, or works council with
respect to their employment with Southern. Southern has not engaged in any unfair labor practices since its incorporation. With respect to the Transactions, Southern has satisfied in all material respects any pre-signing or, as of
the Closing, pre-Closing notice, consultation or other obligations owed to its employees or their representatives under applicable Law or Labor Agreement.
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(b) Southern
is and since its incorporation has been in compliance in all material respects with all applicable Laws respecting labor, employment and employment practices, including Laws regarding terms and conditions of employment, health and
safety, wages and hours, discrimination, harassment, retaliation, whistleblowing, disability, labor relations, worker classification, Tax withholding, hours of work, payment of wages and overtime wages, pay equity, immigration
(including the completion of Forms I-9 and confirmation of visas), workers’ compensation, unemployment insurance, working conditions, equal opportunity, affirmative action, employee leave and other time off, COVID-19, and employee
terminations (including plant closures and layoffs), and has not received written or, to the Knowledge of Southern, oral notice that there is any instance of noncompliance in any of the foregoing respects. Except as would not
result in material liability to Southern, Southern (i) has since its incorporation correctly classified all current and former exempt and non-exempt employees, individual independent contractors, leased employees, and other
non-employee service providers for all applicable purposes, (ii) is not liable for any past due arrears of wages, salaries, premiums, commissions, bonuses, severance, termination payments, fees, or other compensation due to
current or former employees, independent contractors or other individual service providers of Southern since its incorporation or any fine, Tax, interest or penalty for failure or delinquency to pay the foregoing and (iii) is not
liable for any material payment to any Governmental Authority with respect to unemployment or workers’ compensation benefits, social security or other benefits, insurance, Taxes or obligations for employees, independent
contractors or other individual service providers due since Southern’s incorporation (other than routine payments to be made in the ordinary course of business and consistent with past practice). There are no Actions pending or,
to Southern’s Knowledge, threatened, and there have been no such Actions since Southern’s incorporation, by or against Southern brought by or against any applicant for employment, any current or former employee, consultant,
independent contractor or other individual service provider, any Person alleging to be a current or former employee, contractor or individual service provider, or any Governmental Authority or any other Person relating to
violations of labor or employment Laws, or making any other allegation relating to the employment of or services rendered by such Person including alleging breach of any express or implied contract of employment or engagement,
wrongful termination of employment or engagement, or alleging any other discriminatory, wrongful or tortious conduct in connection with the employment or service relationship. To Southern’s Knowledge, (A) no employee or individual
service provider intends to terminate his or her employment with or services to Southern, and (B) no current or former employee or individual service provider is in any material respect in violation of any employment agreement,
nondisclosure obligation, fiduciary duty, restrictive covenant or other obligation (I) owed to Southern or (II) owed to any third party with respect to such person’s right to be employed or engaged by Southern.
(c) Section 4.19(c) of Southern Disclosure Schedules sets forth a complete and accurate list of all employees and individual service providers of Southern, as of the date hereof,
including each such individual’s (i) name, (ii) job title or services description, (iii) employing or engaging entity, (iv) work location, (v) compensation rate and method, (vi) hire or engagement date, (vii) status as exempt or
non-exempt from overtime requirements (for employees), (viii) leave status and (ix) accrued vacation or paid time off.
(d) There
has not at any time since Southern’s incorporation been any, and there is no pending or, to the Knowledge of Southern, threatened, any allegation, investigation (including any internal investigation), complaint, lawsuit or Action
concerning any Misconduct with respect to any Company employee, contractor, or other service provider (and, where required, Southern has taken corrective action in response to).
4.20 Benefit Plans.
(a) “Southern Benefit Plan” means each Benefit Plan that is sponsored, maintained, contributed to or required to be contributed by Southern or under which Southern has any
liability or obligation (including any contingent liability or obligation).
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(b) Set
forth on Section 4.20(b) of the Southern Disclosure Schedules is a true and complete list of each material Southern Benefit Plan (other than any at-will offer letter
that does not provide for equity-based or phantom equity awards, retention, change in control, severance or termination benefits and is on the standard form of offer letter set forth on Section 4.20(b) of the Southern Disclosure Schedules). With respect to each material Southern Benefit Plan, Southern has provided to Southern or its counsel true and complete copies, to the extent
applicable, of (i) each writing constituting a part of such Southern Benefit Plan, including all plan documents and amendments thereto, or if not in writing, a summary of such Southern Benefit Plan, (ii) the most recent annual
report (IRS Forms 5500 series), (iii) any related trust documents and the most recent summary plan description distributed to participants (and any summaries of material modifications thereto), and (iv) any non-routine
correspondence with any Governmental Authority. Each Southern Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code timely received a current, favorable determination, advisory or opinion
letter from the IRS, and, to the Southern’s Knowledge, nothing has occurred that could reasonably be expected to adversely affect the qualified status of any such Southern Benefit Plan.
(c) No
Southern Benefit Plan is, and Southern does not sponsor, maintain or contribute to (or have any obligation to contribute to), or have any liability under or with respect to any: (i) “defined benefit plan” (as defined in Section
3(35) of ERISA) or any plan that is or was subject to Title IV of ERISA or Section 412 or 430 of the Code, (ii) “multiemployer plan,” as defined in Section 3(37) of ERISA, (iii) “multiple employer plan” within the meaning of
Section 413(c) of the Code or Section 210 of ERISA, or (iv) “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). Southern does not have any Liability on account of being considered a single employer
under Section 414 of the Code with any other Person. No Southern Benefit Plan provides, and Southern does not have any obligation to provide, retiree or post-employment health or life insurance or any other retiree or
post-employment welfare-type benefits to any Person other than as required under Section 4980B of the Code or any similar state Law and for which the covered Person pays the full cost of coverage.
(d) With
respect to each Southern Benefit Plan: (i) such Southern Benefit Plan is and has at all times been operated, maintained, funded and administered in all material respects in accordance with its terms, and applicable Laws; (ii)
there have been no “prohibited transactions” within the meaning of Section 4975 of the Code or Section 406 or 407 of ERISA that are not otherwise exempt under Section 408 of ERISA; (iii) no material Action is pending, or to
Southern’s Knowledge, threatened (other than routine claims for benefits arising in the ordinary course of administration); and (iv) all material contributions, distributions, reimbursements and premiums due through the Closing
Date have been timely made and all such amounts for any period ending on or before the Closing Date that are not yet due have been made or properly accrued on the Southern Financial Statements. Southern has not incurred (whether
or not assessed) or is reasonably expected to incur or to be subject to, any material Tax or other penalty with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable, or under Section 4980B,
4980D or 4980H of the Code.
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(e) Neither
the execution and delivery of this Agreement nor the consummation of the Transactions could (either alone or in combination with another event) (i) result in any payment or benefit, or increase in the amount of any compensation or
benefits due, to any current or former employee, officer, director or other individual service provider of Southern; (ii) result in the acceleration of the time of payment or vesting, or trigger any payment or funding of any
compensation or benefits due to any current or former employee, officer, director or other individual service provider of Southern; (iii) except as required under the terms of this Agreement or by applicable Law, restrict the
ability of Southern to merge, amend or terminate any material Southern Benefit Plan; (iv) result in the forgiveness of any employee or service provider loan; or (v) result in the payment of any amount (whether in cash or property
or the vesting of property) that could, individually or in combination with any other such payment, constitute an “excess parachute payment” (within the meaning of Section 280G(b)(1) of the Code). No person is entitled to receive,
and Southern does not have any current or contingent obligation to provide, any payment (including any tax gross-up or other payment), indemnification, reimbursement or otherwise be made whole from Southern as a result of the
imposition of any excise taxes required by any applicable Laws, including under Section 4999 or Section 409A of the Code (or any corresponding provisions of state, local or foreign Tax law).
(f) Each
Southern Benefit Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in all
respects in operational compliance with, and is in all respects in documentary compliance with, Section 409A of the Code and all IRS guidance promulgated thereunder, and no amount under any such plan, agreement or arrangement is,
has been or could reasonably be expected to be subject to any additional Tax, interest or penalties under Section 409A of the Code.
4.21 Environmental Matters.
(a) Southern
has, since incorporation have been, in compliance in all material respects with all applicable Environmental Laws, including obtaining, maintaining, and complying in all material respects with all Permits required under
Environmental Laws for the operation of its business and the occupation of its properties and facilities.
(b) Southern
has not received any Order, notice or written report from any Governmental Authority regarding any actual or alleged material violation of, or material Liability under, Environmental Laws.
`
(c) Southern
has not treated, stored, arranged for or permitted the disposal of, transported, handled, distributed, exposed any person to or Released Hazardous Materials, including on any property owned, or operated on, by Southern and no such
property owned or operated on by Southern is contaminated by Hazardous Materials, in each case so as to give rise to any Environmental Liabilities of Southern.
(d) Southern
is not party to any Contract pursuant to which Southern provided an indemnity with respect to, or has otherwise become subject to (either by Contract or operation of Law), any Environmental Liability of any other Person under
Environmental Laws or relating to Hazardous Materials.
(e) Southern
has provided to the Company and DevvStream all environmental audits, assessments and reports and other material environmental, health or safety documents relating to Southern’s past or current properties, facilities or operations
on Southern’s properties and facilities that are in Southern’s possession or, to the Knowledge of Southern, under its reasonable control.
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4.22 Related Person Transactions. Except as set forth on Section 4.22 of the Southern Disclosure Schedules, neither Southern nor any
of its Affiliates, nor any officer, director, manager, employee, trustee or beneficiary of Southern or any of its Affiliates, nor any immediate family member of any of the foregoing (whether directly or indirectly through an Affiliate
of such Person) (each of the foregoing, a “Southern Related Person”) is presently, or since Southern’s incorporation, has been, a party to any transaction with Southern,
including any Contract or other arrangement (a) providing for the furnishing of services by (other than as officers, directors or employees of Southern), (b) providing for the rental of real property or Personal Property from or (c)
otherwise requiring payments to (other than for services or expenses as directors, officers or employees of Southern in the ordinary course of business consistent with past practice) any Southern Related Person or any Person in which
any Southern Related Person has an interest as an owner, officer, manager, director, trustee or partner or in which any Southern Related Person has any direct or indirect interest.
4.23 Insurance.
(a) A
list of all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) held by Southern, as of the date hereof, relating to Southern or its business, properties, assets,
directors, officers and employees, copies of which have previously been made available to the Company and DevvStream is set forth on Section 4.23(a) of the Southern
Disclosure Schedules. All premiums due and payable under all such insurance policies have been timely paid and Southern is otherwise in material compliance with the terms of such insurance policies and each such insurance policy
(i) is legal, valid, binding, enforceable and in full force and effect and (ii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the Closing. Southern does not have
any self-insurance or co-insurance programs. Since the date of Southern’s incorporation, Southern has not received any notice from, or on behalf of, any insurance carrier relating to or involving any adverse change or any change
other than in the ordinary course of business, in the conditions of insurance, any refusal to issue an insurance policy or non-renewal of a policy.
(b) Southern
has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such a claim would not be reasonably likely to be material to Southern.
To the Knowledge of Southern, no event has occurred, and no condition or circumstance exists, that would reasonably be expected to (with or without notice or lapse of time) give rise to or serve as a basis for the denial of any
such material insurance claim. Since incorporation, Southern has not made any claim against an insurance policy as to which the insurer is denying or has denied coverage.
4.24 Books and Records. All of the financial books and records of Southern are complete and accurate in all material respects and have been maintained in the ordinary course of business
consistent with past practice and in accordance with applicable Laws.
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4.25 Certain Business Practices.
(a) Neither
Southern nor any of its respective officers, directors, employees or other individual service providers, nor to the Knowledge of Southern, any agent or other third party representative acting on behalf of Southern, (a) is
currently, or has been since incorporation: (i) a Sanctioned Person; (ii) engaging in any dealings or transactions with or for the benefit of any Sanctioned Person or in any Sanctioned Country; (iii) engaging in any export,
reexport, transfer or provision of any goods, software, technology, data or service without, or exceeding the scope of, any required or applicable licenses or authorizations under all applicable Ex-Im Laws; or (iv) otherwise in
violation of Trade Controls; or (b) has at any time (i) made or accepted any unlawful payment or given, received, offered, promised, or authorized or agreed to give or receive, any money, advantage or thing of value, directly or
indirectly, to or from any employee or official of any Governmental Authority or any other Person in violation of Anti-Corruption Laws; or (ii) otherwise been in violation of any Anti-Corruption Laws.
(b) Southern
has not received from any Governmental Authority or any Person any notice, inquiry, or internal or external allegation; made any voluntary or involuntary disclosure to a Governmental Authority; or conducted any internal
investigation or audit concerning any actual or potential violation or wrongdoing in each case, related to Trade Controls or Anti-Corruption Laws.
(c) Southern
is not a “TID U.S. Business,” as such term is defined in 31 C.F.R. § 800.248.
4.26 Compliance with Privacy Laws, Privacy Policies and Certain Contracts.
(a) Southern,
and to the Knowledge of Southern, its officers, directors, employees, agents, subcontractors, vendors and other individual service providers to whom Southern has given access to Personal Data, are and have been at all times, in
compliance in all material respects with (i) all applicable Privacy Laws, (ii) Southern’s privacy policies, (iii) all industry and self-regulatory standards governing Personal Data, privacy, data security, and data protection to
which Southern is bound or to which it purports to adhere (including, as applicable, the Payment Card Industry Data Security Standard), and (iv) Southern’s contractual obligations concerning Personal Data, privacy, data
protection, cybersecurity, data security and the security of Southern’s information technology systems, and neither the execution, delivery nor performance of this Agreement or any other agreements referred to in this Agreement
nor the consummation of any of the Transactions will, with or without notice or lapse of time, directly result in any violation of the foregoing clauses (i)–(iv) in any material respect;
(b) To
the Knowledge of Southern, Southern has not experienced any material loss, damage or unauthorized access, use, disclosure, modification or breach of security of Personal Data maintained by or on behalf of Southern (including, to
the Knowledge of Southern, by any agent, subcontractor or vendor of Southern); and
(c) To
the Knowledge of Southern, (i) no Person, including any Governmental Authority, has made any written claim or commenced any Proceeding with respect to any violation of any Privacy Law by Southern; and (ii) Southern has not been
given written notice of any criminal, civil or administrative violation of any Privacy Law, in any case including any claim or Action with respect to any loss, damage or unauthorized access, use, disclosure, modification or breach
of security, of Personal Data maintained by or on behalf of Southern (including by any agent, subcontractor or vendor of Southern).
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4.27 Investment Company Act. Southern is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company,” or required to register as
an “investment company,” in each case within the meaning of the Investment Company Act.
4.28 Finders and Brokers. Except as set forth on Section 4.28 of the Southern Disclosure Schedules, Southern does not have any
Liability in connection with this Agreement or the Ancillary Documents, or the Transactions, that would result in the obligation of Southern, or any of its Affiliates, to pay any finder’s fee, brokerage or agent’s commissions or other
like payments.
4.29 Independent Investigation. Southern has conducted its own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or
otherwise) or assets of the Company and DevvStream and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Company and
DevvStream for such purpose. Southern acknowledges and agrees that: (a) in making its decision to enter into this Agreement, the Ancillary Documents to which it is a party and to consummate the Transactions, it has relied solely upon
its own investigation and the express representations and warranties of Southern Merger Sub and DevvStream Merger Sub set forth in Article V, DevvStream set forth in Article VI (including the related portions of the DevvStream Disclosure Schedules) and the Company set forth in Article VII
(including the related portions of the Company Disclosure Schedule) and in any certificate delivered to Southern by the Company, DevvStream, Southern Merger Sub or DevvStream Merger Sub pursuant hereto; and (b) neither the Company,
DevvStream nor any of their Representatives has made any representation or warranty, express or implied, as to the Company, DevvStream, Southern Merger Sub or DevvStream Merger Sub, this Agreement, the Transactions, or any information
or materials regarding the foregoing furnished or made available to Southern, except as expressly set forth in Article V, Article
VI and Article VII of this Agreement (including the related portions of the Company Disclosure Schedules and DevvStream Disclosure Schedules) or in any
certificate delivered to Southern by the Company, DevvStream, Southern Merger Sub or DevvStream Merger Sub pursuant hereto.
4.30 Information Supplied. None of the information supplied or to be supplied by Southern expressly for inclusion or incorporation by reference: (a) in any current report on Form 8-K, and any
exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority or stock exchange with respect to the Transactions; (b) in the Registration Statement; or (c) in the Company Proxy
Statement, the DevvStream Circular and other mailings or other distributions to the Company Shareholders, Southern Shareholders, DevvStream Shareholders or prospective investors with respect to the consummation of the Transactions or
in any amendment to any of documents identified in (a) through (c), will, when filed, made available, mailed or distributed, as the case may be, including on the Closing Date, contain or will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, other than in the case of the Registration Statement, in light of the circumstances under which they are made,
not misleading. None of the information supplied or to be supplied by Southern expressly for inclusion or incorporation by reference in any press release or filing will, when filed or distributed, as applicable, contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
Notwithstanding the foregoing, Southern does not make any representation, warranty or covenant with respect to any information supplied by or on behalf of the Company, DevvStream or their respective Affiliate.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE MERGER SUBS
The Company hereby represents and warrants to Southern and DevvStream that, with respect to the Merger Subs each
of the following representations are true and correct as of the date of this Agreement and as of the Closing Date (except, as to any representations and warranties that specifically relate to an earlier date, in which case such
representations and warranties were true and correct as of such earlier date):
5.1 Organization and Standing. Each Merger Sub is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and will have all requisite
corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each Merger Sub is duly qualified or licensed and in good standing to do business in each jurisdiction in
which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified or licensed or in good
standing has not and would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Merger Sub to enter into this Agreement or consummate the Transactions (a “Merger Sub Material Adverse Effect”). Neither Merger Sub is in violation of any provision of its Organizational Documents in any material respect.
5.2 Authorization; Binding Agreement. Each Merger Sub has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is a party,
to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery of this Agreement and each Ancillary Document to which such Merger Sub is a party and the consummation of the
Transactions have been duly and validly authorized by the Board of Directors of such Merger Sub and the Company (in its capacity as sole shareholder of such Merger Sub) in accordance with such Merger Sub’s Organizational Documents and
applicable Law and no other corporate proceedings, other than as set forth elsewhere in this Agreement, on the part of such Merger Sub are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document
to which it is a party or to consummate the Transactions. This Agreement has been, and each Ancillary Document to which a Merger Sub is a party shall be when delivered, duly and validly executed and delivered by such Merger Sub and,
assuming the due authorization, execution and delivery of this Agreement and such Ancillary Documents by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the valid and binding obligation of such
Merger Sub, enforceable against such Merger Sub in accordance with its terms, subject to the Enforceability Exceptions.
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5.3 Governmental Approvals. No Consent of or with any Governmental Authority on the part of either Merger Sub is required to be obtained or made in connection with the execution, delivery or
performance by such Merger Sub of this Agreement and each Ancillary Document to which it is a party or the consummation by such Merger Sub of the Transactions, other than (a) such filings as are contemplated by this Agreement,
including those necessary for the Required Regulatory Approvals, (b) any filings required with Nasdaq, Nasdaq Sweden or the SEC with respect to the Transactions, (c) applicable requirements, if any, of the Securities Act, the Exchange
Act, or any state “blue sky” securities Laws, and the rules and regulations thereunder, and (d) where the failure to obtain or make such Consents or to make such filings or notifications, would not, individually or in the aggregate,
reasonably be expected to have a Merger Sub Material Adverse Effect.
5.4 Non-Contravention. The execution and delivery by each Merger Sub of this Agreement and each Ancillary Document to which it is a party, the consummation by such Merger Sub of the
Transactions, and compliance by such Merger Sub with any of the provisions hereof and thereof, will not (a) contravene, conflict with or violate any provision of such Merger Sub’s Organizational Documents, (b) subject to obtaining the
Consents from Governmental Authorities referred to in Section 5.3 hereof, and the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been satisfied, conflict with or
violate in any respect any Law, Order or Consent applicable to such Merger Sub, or any of its properties or assets, except for violations that would not prevent or delay the consummation of the Transactions or (c) (i) violate,
conflict with or result in a material breach of, (ii) result in a default (or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) give rise to any right of termination, cancellation or
acceleration under, (iv) give rise to any obligation to make payments or provide compensation under, or (v) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of such Merger Sub under,
any of the terms, conditions or provisions of any Contract to which such Merger Sub is a party or by which such Merger Sub or any of its assets may be bound, except in each case which would not, individually or in the aggregate,
reasonably be expected to have a Merger Sub Material Adverse Effect.
5.5 Capitalization.
(a) Prior
to giving effect to the Merger, each Merger Sub is authorized to issue up to 1,000 shares of common shares, par value $0.0001, of which one common share is issued and outstanding in the name of the Company. Prior to giving effect
to the Transactions, neither Merger Sub has ever had any Subsidiaries or owned any equity interests in any other Person.
(b) Except
as set forth in its Organizational Documents, neither Merger Sub (i) has any obligation to issue, sell or transfer any equity securities of such Merger Sub, (ii) is party or subject to any contract that affects or relates to
voting or giving of written consents with respect to, or the right to cause the redemption, or repurchase of, any equity interests of such Merger Sub, (iii) has granted any registration rights or information rights to any other
Person, (iv) has granted any phantom shares and there are no voting or similar agreements entered into by such Merger Sub that relate to its capital or equity interests, (v) has any outstanding bonds, debentures, notes or other
obligations the holders of which have the right to vote (or convertible into or exercisable for voting interests of such Merger Sub or equity interests of such Merger Sub) with the owner or holder of such Merger Sub on any matter
or any agreements to issues such bonds, debentures, notes or other obligations and (vi) has any outstanding contractual obligations to provide funds to, or make any investment (other than in connection with the Transactions) in,
any other Person.
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5.6 Merger Sub Activities.
(a) Since
incorporation, neither Merger Sub has engaged in any business activities other than as contemplated by this Agreement and activities incident to the preservation of its existence, does not own directly or indirectly any ownership,
equity, profits or voting interest in any Person and has no assets or Liabilities except those incurred in connection with this Agreement and the Ancillary Documents to which it is a party and the Merger.
(b) Each
Merger Sub was formed solely for the purpose of effecting the Transactions.
(c) Other
than this Agreement and the Ancillary Documents to which it is a party, neither Merger Sub is party to or bound by any Contract or any agreement or understanding whereby it would have material interests, rights, obligations or
Liabilities with respect to another transaction that is, or would reasonably be interpreted as constituting, a merger, business combination or other similar transaction. Except for the Transactions, neither Merger Sub owns or has
a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any Person.
5.7 Compliance with Laws. Neither Merger Sub is, and since the date of its formation, has been, in conflict or non-compliance with, or in default or violation of, any Laws applicable to it.
Neither Merger Sub has, since the date of its formation, received any written or oral notice of, or, to its knowledge, is under investigation with respect to, any material conflict or non-compliance with, or material default or
violation of, any applicable Laws by which it is or was bound.
5.8 Actions; Orders. There is no material Action pending or, to the knowledge of either Merger Sub, threatened against or affecting such Merger Sub, and there is no Action that either Merger
Sub has pending against any other Person. Neither Merger Sub is subject to any Orders of any Governmental Authority, nor, to the knowledge of either Merger Sub, are any such Orders pending.
5.9 Transactions with Related Parties. There are no transactions, Contracts or understandings between either Merger Sub, on the one hand, and any (a) present or former director, officer or
employee or Affiliate of such Merger Sub, or any immediate family member of any of the foregoing, or (b) record or beneficial owner of more than five percent (5%) of such Merger Sub’s outstanding capital stock as of the date hereof,
on the other hand.
5.10 Finders and Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from either Merger Sub or any of their respective Affiliates in
connection with the Transactions based upon arrangements made by or on behalf of such Merger Sub.
5.11 Investment Company Act. Neither Merger Sub is an “investment company” or a Person directly or indirectly controlled by or acting on behalf of a person subject to registration and regulation
as an “investment company,” in each case within the meanings of the Investment Company Act.
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5.12 Taxes. Neither Merger Sub has taken or agreed to take any action, and does not intend to or plan to take any action, or has any knowledge of any fact or circumstance that could reasonably
be expected to prevent the Transactions from qualifying for the Intended US Tax Treatment (with the exception of any actions specifically contemplated by this Agreement).
5.13 Independent Investigation. Each Merger Sub has conducted its own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or
otherwise) or assets of Southern and DevvStream and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of Southern and DevvStream for
such purpose. Each Merger Sub acknowledges and agrees that: (a) in making its decision to enter into this Agreement, the Ancillary Documents to which it is a party and to consummate the Transactions, it has relied solely upon its own
investigation and the express representations and warranties of Southern set forth in Article IV and DevvStream set forth in Article VI of this Agreement (including the related portions of the Southern Disclosure Schedules and the
DevvStream Disclosure Schedules); and (b) none of Southern, DevvStream, or any of their respective Representatives have made any representation or warranty as to Southern, DevvStream, this Agreement, the Transactions, or any
information or materials regarding the foregoing furnished or made available to such Merger Sub, except as expressly set forth in Article IV and Article VI of this Agreement (including the related portions of the Southern Disclosure Schedules and the DevvStream Disclosure Schedules).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF DEVVSTREAM
Except as set forth in (a) the disclosure schedules delivered by DevvStream to the Company and Southern on the
date hereof (the “DevvStream Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer or
(b) as disclosed in the DevvStream SEC Documents publicly filed or furnished prior to the date of this Agreement and after November 6, 2024 (other than disclosures in the “Risk Factors” section of any such filings and any disclosure
of risks included in any “forward-looking statements” disclaimer contained in any such filings, in each case, to the extent such disclosures are predictive, cautionary or forward-looking in nature) to the extent the relevance of such
disclosure as an exception to (or disclosure for the purpose of) a representation or warranty is reasonably apparent, DevvStream hereby represents and warrants to the Company and Southern that each of the following representations are
true and correct as of the date of this Agreement and as of the Closing Date (except, as to any representations and warranties that specifically relate to an earlier date, in which case such representations and warranties were true
and correct as of such earlier date):
6.1 Organization and Standing. DevvStream is a corporation duly organized, validly existing and in good standing under the Laws of the Province of Alberta, and has the requisite corporate power
and capacity to own, lease and operate its properties and to carry on its business as now being conducted. DevvStream is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of the
property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified or licensed or in good standing has not and would not,
individually or in the aggregate, reasonably be expected to have (i) a Material Adverse Effect on DevvStream or (ii) a material adverse effect on the ability of DevvStream to enter into this Agreement or consummate the Transactions
(clause (i) or (ii), a “DevvStream Material Adverse Effect”). DevvStream has heretofore made available (including via the DevvStream SEC Documents) to the Parties accurate
and complete copies of its Organizational Documents, as currently in effect as of the date hereof. DevvStream is not in violation of any provision of its Organizational Documents in any material respect. DevvStream is not the subject
of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.
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6.2 Authorization; Binding Agreement.
(a) DevvStream
has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Transactions,
subject to the receipt of the Required DevvStream Shareholder Approval and the Letter of Authorization. The execution and delivery of this Agreement and each Ancillary Document to which DevvStream is or is required to be a party
and the consummation of the Transactions (i) have been duly and validly authorized by the DevvStream Board in accordance with DevvStream’s Organizational Documents, any applicable Law or any Contract to which DevvStream is a party
or by which it or its securities are bound and (ii) no other corporate proceedings, other than as set forth elsewhere in this Agreement, on the part of DevvStream are necessary to authorize the execution and delivery of this
Agreement and each Ancillary Document to which it is a party or to consummate the Transactions except for obtaining Required DevvStream Shareholder Approval.
(b) The
DevvStream Board has (acting upon the unanimous recommendation of the DevvStream Special Committee) by resolutions duly adopted at a meeting duly called and held, as of the date of this Agreement (i) determined that this
Agreement, the Domestication, the DevvStream Merger and the other Transactions are advisable, fair to, and in the best interests of, the DevvStream Shareholders, (ii) approved, among other things, this Agreement and the Ancillary
Documents to which it is a party and the Transactions, including the Domestication and the DevvStream Merger, on the terms and subject to the conditions of this Agreement and in accordance with applicable Law and (iii) resolved to
recommend that the DevvStream Shareholders vote in favor of the Domestication and the DevvStream Merger. The DevvStream Shareholders are the only DevvStream Securityholders entitled to vote on the DevvStream Resolutions. Except
for the Required DevvStream Shareholder Approval, no additional approval or vote of any holders of voting or other equity interests of DevvStream would then be necessary to approve and adopt this Agreement and the Ancillary
Documents and approve the Transactions.
(c) This
Agreement has been, and each Ancillary Document to which DevvStream is a party shall be, when delivered, duly and validly executed and delivered by DevvStream and, assuming the due authorization, execution and delivery of this
Agreement and any such Ancillary Document by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of DevvStream, enforceable against DevvStream in
accordance with its terms, subject to the Enforceability Exceptions.
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6.3 Governmental Approvals. Except as described in Section 6.3 of the DevvStream Disclosure Schedules, no Consent of or with any
Governmental Authority on the part of DevvStream is required to be obtained or made in connection with the execution, delivery or performance by DevvStream of this Agreement each Ancillary Document to which it is a party or the
consummation by DevvStream of the Transactions, other than (a) such filings and approvals as expressly contemplated by this Agreement, including the filing of the Merger Certificates and those necessary for the Required Regulatory
Approvals, (b) any filings and approvals required with the SEC, Nasdaq and other applicable Canadian securities regulatory authorities with respect to the Transactions, (c) applicable requirements, if any, of the Securities Act, the
Exchange Act, or any state “blue sky” securities Laws, and the rules and regulations thereunder, (d) a post-closing notification pursuant to the Investment Canada Act, (e) in connection with the Domestication and (f) where the failure
to obtain or make such Consents or to make such filings or notifications, would not, individually or in the aggregate, reasonably be expected to have a DevvStream Material Adverse Effect.
6.4 Non-Contravention. Except as otherwise described in Section 6.4 of the DevvStream Disclosure Schedules, the execution and
delivery by DevvStream of this Agreement and each Ancillary Document to which it is a party, the consummation by DevvStream of the Transactions, and compliance by DevvStream with any of the provisions hereof and thereof, will not (a)
contravene or conflict with or violate any provision of DevvStream’s Organizational Documents, (b) contravene or conflict with or constitute a violation of any provisions of Law or Order binding upon or applicable to DevvStream or (c)
subject to obtaining the Consents from Governmental Authorities referred to in Section 6.3 hereof, and the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been
satisfied, conflict with or violate in any material respect any Law, Order or Consent applicable to DevvStream, or any of its properties or assets, except for violations that would not prevent or delay the consummation of the
Transactions, or (d)(i) violate, conflict with or result in a breach of, (ii) result in a default (or an event which, with notice or lapse of time or both, would constitute a material default) under, (iii) give rise to any right of
termination, cancellation or acceleration under, (iv) give rise to any obligation to make material payments or provide material compensation under, (v) result in the creation of any Lien (other than Permitted Liens) upon any of the
properties or assets of DevvStream under, (vi) give rise to any obligation to obtain any material third party Consent or provide any notice to any Person or (vii) give any Person the right to declare a default, exercise any remedy,
claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of
any DevvStream Material Contract except, in each case, where such conflict, violation, breach, default, termination, cancellation, modification, acceleration, obligation, creation, or default would not, individually or in the
aggregate, reasonably be expected to have a DevvStream Material Adverse Effect.
6.5 Capitalization.
(a) As
of the date hereof, DevvStream is authorized to issue an unlimited number of Pre-Domestication DevvStream Common Shares, of which 13,246,840 are issued and outstanding as at the date hereof and an unlimited number of shares of
preferred stock, issuance in series, of which none are issued and outstanding as of the date hereof. All outstanding DevvStream Shares are, or when issued in connection with the Domestication, shall be duly authorized, are fully
paid and nonassessable and are not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, or any
Contract to which DevvStream is a party or by which it or its securities are bound. DevvStream does not hold any shares or other equity interests of DevvStream in its treasury. None of the outstanding DevvStream Securities have
been, and after the Domestication, will be issued in violation of any applicable securities Law.
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(b) Except
as set forth on Section 6.5(b) of the DevvStream Disclosure Schedules, there are no outstanding or authorized options, warrants, puts, calls, restricted stock,
restricted stock units, phantom stock, profit participation rights, equity appreciation rights, phantom equity rights, other equity or equity-based awards or other similar rights with respect to DevvStream other than the
DevvStream Equity Incentive Plan.
(c) Section 6.5(c) of the DevvStream Disclosure Schedules contains a complete and correct list, as of the date hereof, of (i) the name of the holder of each such DevvStream
Warrant, (ii) the number of DevvStream Shares underlying each such DevvStream Warrant, (iii) the date on which each such DevvStream Warrant was granted, (iv) the exercise price of each DevvStream Warrant and (v) the expiration
date of each DevvStream Warrant.
(d) Other
than as set forth on Section 6.5(b), Section 6.5(c) and Section
6.5(d) of the DevvStream Disclosure Schedules, as of the date hereof, there are no other equity or voting interests in, or any DevvStream Convertible Securities, or preemptive rights or other outstanding rights,
options, warrants, subscriptions, puts, calls, restricted stock, restricted stock units, phantom stock, stock appreciation, profit participation, conversion rights or similar equity or equity-based rights, interests, agreements or
commitments of any rights of first refusal or first offer, nor are there any Contracts, commitments, arrangements or restrictions to which DevvStream or, to the Knowledge of DevvStream, any of its shareholders is a party or bound
relating to any equity securities of DevvStream, whether or not outstanding
(e) Except
with respect to the DevvStream Support & Lock-Up Agreement, there are no voting trusts, proxies, shareholder agreements or any other agreements or understandings with respect to the voting of DevvStream’s equity interests.
Except as set forth in DevvStream’s Certificate of Incorporation or as expressly set forth in this Agreement, there are no outstanding contractual obligations of DevvStream to repurchase, redeem or otherwise acquire any equity
interests or securities of DevvStream, nor has DevvStream granted any registration rights to any Person with respect to DevvStream’s equity securities. All of the DevvStream Securities have been, and after the Domestication, shall
be granted, offered, sold and issued in compliance with all applicable securities Laws.
(f) No
equity interests of DevvStream are issuable, and no rights in connection with any interests, warrants, rights, options or other securities of DevvStream accelerate or otherwise become triggered (whether as to vesting,
exercisability, convertibility or otherwise) as a result of the Transactions.
(g) Except
as disclosed in the DevvStream Financial Statements, DevvStream has not declared or paid any distribution or dividend in respect of its equity interests and has not repurchased, redeemed or otherwise acquired any equity interests
of DevvStream, and the DevvStream Board has not authorized any of the foregoing.
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6.6 Subsidiaries.
(a) Section 6.6(a) of the DevvStream Disclosure Schedules sets forth a true and complete list of the Subsidiaries of DevvStream, listing for each Subsidiary its name, the
jurisdiction of its formation or organization (as applicable) and its parent company (if wholly-owned) or its owners (if not-wholly owned). Except as set forth on Section 6.6(a)
of the DevvStream Disclosure Schedules, all of the outstanding voting or other equity securities, as applicable, of each Subsidiary of DevvStream are duly authorized, validly issued, free of preemptive rights, restrictions on
transfer (other than restrictions under applicable federal, state and other securities Laws) and, if applicable, fully paid and non-assessable, and are owned by DevvStream, whether directly or indirectly, free and clear of all
Liens (other than Permitted Liens)
(b) Except
as set forth on Section 6.6(b) of the DevvStream Disclosure Schedules, there are no options, warrants, convertible securities, stock appreciation, phantom stock,
stock-based performance unit, profit participation, restricted stock, restricted stock unit, other equity-based compensation award or similar rights with respect to any Subsidiary of DevvStream and no rights, exchangeable
securities, securities, “phantom” rights, appreciation rights, performance units, commitments or other agreements obligating any Subsidiary of DevvStream to issue or sell, or cause to be issued or sold, any equity securities of,
or any other interest in, any Subsidiary of DevvStream, including any security convertible or exercisable into equity securities of any Subsidiary of DevvStream. There are no Contracts to which any Subsidiary of DevvStream is a
party that require such Subsidiary of DevvStream to repurchase, redeem or otherwise acquire any equity interests or securities convertible into or exchangeable for such equity securities or to make any investment in any other
Person.
(c) DevvStream
is not a participant in any joint venture, partnership or similar arrangement, except as set forth on Section 6.6(c) of the DevvStream Disclosure Schedules
(d) There
are no outstanding contractual obligations of DevvStream to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.
6.7 Financial Statements.
(a) The
DevvStream SEC Documents reflect the comparative audited consolidated balance sheet of DevvStream and its Subsidiaries as of July 31, 2025, and the related comparative audited consolidated statements of comprehensive loss, cash
flows and members’ equity, together with all related notes and schedules thereto, accompanied by the reports thereon of DevvStream’s independent auditor (such financial statements, the “DevvStream Financial Statements”).
(b) Except
as set forth on Section 6.7(b) of the DevvStream Disclosure Schedules, the DevvStream Financial Statements (i) have been prepared from the books and records of
DevvStream and its Subsidiaries or their respective predecessors; (ii) shall have been prepared in accordance with GAAP, applied on a consistent basis throughout the periods involved, except as may be indicated in the notes
thereto and subject, in the case of the unaudited DevvStream Financial Statements, to the absence of footnotes and year-end adjustments; and (iii) fairly present, in all material respects, the consolidated financial position of
DevvStream and its Subsidiaries as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended (subject, in the case of the unaudited DevvStream Financial Statements, to the absence
of footnotes and year-end adjustments, none of which would be expected to be material individually or in the aggregate).
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(c) The
books of account and other financial records of DevvStream and its Subsidiaries have been kept accurately in all material respects in the ordinary course of business, and the transactions entered therein represent bona fide
transactions.
(d) DevvStream
and its Subsidiaries have devised and maintained a system of internal accounting policies and controls sufficient to provide reasonable assurances that (i) transactions are executed in all material respects in accordance with
management’s authorization; (ii) the transactions are recorded as necessary to permit the preparation of financial statements in conformity GAAP and to maintain accountability for assets; and (iii) the amount recorded for assets
on the books and records of DevvStream and each of its Subsidiaries is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference (collectively, “DevvStream Internal Controls”).
(e) DevvStream
has not identified and has not received written notice from an independent auditor of (i) any significant deficiency or material weakness in the system of DevvStream Internal Controls utilized by DevvStream or any of its
Subsidiaries; (ii) any fraud that involves DevvStream’s or any of its Subsidiaries’ management or other employees who have a role in the preparation of financial statements or the DevvStream Internal Controls utilized by
DevvStream or any of its Subsidiaries; or (iii) any claim or allegation regarding any of the foregoing. There are no significant deficiencies or material weaknesses in the design or operation of the DevvStream Internal Controls
over financial reporting that would reasonably be expected to materially and adversely affect DevvStream’s, or any of its Subsidiaries’, ability to record, process, summarize and report financial information.
(f) Except
as set forth on Section 6.7(f) of the DevvStream Disclosure Schedules or to the extent reflected or reserved against in the DevvStream Financial Statements or as
incurred in connection with this Agreement, neither DevvStream nor any of its Subsidiaries has incurred any Liabilities or obligations of the type required to be reflected on a balance sheet in accordance with GAAP with respect to
the DevvStream Financial Statements that are not adequately reflected or reserved on or provided for in the DevvStream Financial Statements other than (i) Liabilities of the type required to be reflected on a balance sheet in
accordance with GAAP, as applicable, that have been incurred since the Latest Balance Sheet Date in the ordinary course of business or (ii) Liabilities that are not, individually or in the aggregate, material in amount or (iii)
Liabilities incurred in connection or as permitted by this Agreement, the Ancillary Documents or the Transactions. All debts and Liabilities, fixed or contingent, which should be included under GAAP on a balance sheet are included
in all material respects in the DevvStream Financial Statements as of the date of such DevvStream Financial Statements. DevvStream has no off-balance sheet arrangements.
6.8 Absence of Certain Changes. Except as set forth on Section 6.8 of the DevvStream Disclosure Schedules, since the Latest Balance
Sheet Date, (a) DevvStream and each of its Subsidiaries have conducted their respective business in the ordinary course and consistent with past practice in all material respects and (b) neither DevvStream nor any of its Subsidiaries
has taken any action that, if taken after the date of this Agreement and prior to the Closing, would require the consent of the Company and Southern pursuant to Section 8.2.
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6.9 Securities Laws. DevvStream is a “reporting issuer” under securities Laws in each of the provinces of Alberta, British Columbia and Ontario and is not in default under the securities Laws
of such provinces. The issued and outstanding DevvStream Shares are listed for trading on Nasdaq and are not listed for trading on any other securities exchange as a result of any application made by DevvStream. Except as set forth on
Section 6.9 of the DevvStream Disclosure Schedules, DevvStream is not in default of any material requirements of any securities Laws or the rules and policies of Nasdaq
(including applicable continued listing requirements of such DevvStream Shares and corporate governance rules), and DevvStream has not received any written deficiency notice from the Nasdaq relating to the continued listing
requirements of such DevvStream Shares.
6.10 Compliance with Laws and Carbon Standards. Except as set forth on Section 6.10 of the DevvStream Disclosure Schedules, neither
DevvStream nor any of its Subsidiaries is, and since its incorporation has ever been, in material conflict or material non-compliance with, or in material default or violation of any applicable Laws or applicable Carbon Standards.
Since their respective formation, neither DevvStream nor any of its Subsidiaries, (i) has received any written or, to the Knowledge of DevvStream or any of its Subsidiaries, oral notice of any material conflict or non-compliance with,
or material default or violation of, any applicable Laws by which it or any of its respective properties, assets, employees or other individual service providers (solely in such individuals’ capacity as service providers to
DevvStream), business, products or operations are or were bound or affected, (ii) has been subjected to any investigation by a Governmental Authority regarding any actual or alleged violation of or failure on the part of DevvStream or
any of its Subsidiaries to comply with any applicable Law, (iii) has had claims filed against it or any of its Subsidiaries with (A) any Governmental Authority alleging any failure by DevvStream or any of its Subsidiaries to comply
with applicable Law or (B) any Registry alleging any failure with respect to the Carbon Credits transacted by DevvStream or any of its Subsidiaries to comply with applicable Carbon Standards, (iv) has not had its access or Registry
Account suspended in respect of any relevant Registry and (v) has not made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged act or omission arising under or relating to any
noncompliance with any applicable Law, in the case of clauses (i) through (iii), except as would not, or would not reasonably be expected to, be material to DevvStream or any of its Subsidiaries.
6.11 DevvStream Permits and Registry Accounts. DevvStream and its Subsidiaries hold all material licenses and Permits necessary to lawfully own, lease and conduct in all material respects their
respective business as presently conducted, including necessary Registry Accounts on any relevant Registry, and to own, lease and operate their respective assets and properties (collectively, the “DevvStream Permits”). All the DevvStream Permits and Registry Accounts are in full force and effect and not subject to, or, to the Knowledge of DevvStream, threatened to be subject to, any revocation or
modification Proceeding, or any suspension or termination, as a result of, or in connection with, the consummation of the Transactions, and DevvStream and its Subsidiaries are conducting business in compliance in all material respects
with the DevvStream Permits, any Carbon Standard under which any of the Carbon Credits that are transacted by DevvStream or its Subsidiaries are certified, and the requirements of each relevant Registry. Neither DevvStream nor its
Subsidiaries is in violation in any material respect of the terms of the DevvStream Permits, and no Proceeding is pending or, to the Knowledge of DevvStream or any of its Subsidiaries, threatened, to suspend, revoke, withdraw, modify
or limit any such DevvStream Permit in a manner that has had or would reasonably be expected to have a material impact on the ability of DevvStream or any of its Subsidiaries, as applicable, to use such DevvStream Permit or conduct
its business, as applicable.
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6.12 Carbon Credits. Neither DevvStream nor any of its Subsidiaries have, as of the date hereof, created any security interest or encumbrance in any Carbon Credits that are presently owned, or
in the future will be owned, by DevvStream or such Subsidiary, in favor of any third party.
6.13 Litigation. Except as set forth on Section 6.13 of the DevvStream Disclosure Schedules, since DevvStream’s incorporation, there
have been, and there are, no Actions or Orders of any nature currently pending or, to DevvStream’s Knowledge, threatened against DevvStream or any of its Subsidiaries, and no such Action or Order has been brought against DevvStream or
any of its Subsidiaries, or any of their respective current or former directors, officers or securityholders, business, equity securities, or assets, or employees or other individual service providers in their capacities as such that
would, individually or in the aggregate, be material to DevvStream or any of its Subsidiaries, taken as a whole.
6.14 Material Contracts.
(a) Section 6.14(a) of the DevvStream Disclosure Schedules sets forth a true, correct and complete list of the DevvStream Material Contracts, as of the date hereof, a true,
correct and complete copy (including written summaries of oral Contracts) of which, in each case, has been made available to the Company and Southern. For purposes of this Agreement, “DevvStream
Material Contract” means any contract, together with each DevvStream Benefit Plan that is a Contract, to which DevvStream is a party or by which DevvStream, any of its Subsidiaries, or any of its properties or
assets are bound or affected that:
(i) contains covenants that limit or restrict the ability of DevvStream or any of its Subsidiaries (A) to compete in any line of business or with any Person or in any geographic area or to sell, receive or provide
any service or product or solicit any Person, including any non-competition covenants, non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or similar provision with respect to
any Person or (B) to purchase or acquire an interest in any other Person;
(ii) involves any joint venture, partnership or similar agreement;
(iii) relates to the voting or control of the equity interests of DevvStream or any of its Subsidiaries or the election of directors of DevvStream or any of its Subsidiaries (other than the Organizational Documents
of DevvStream and any of its Subsidiaries);
(iv) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of DevvStream having an outstanding principal amount in excess of $50,000;
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(v) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $100,000 or shares or other equity interests of DevvStream or another
Person;
(vi) relates to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity or its business or material assets or the sale of DevvStream, its
business or material assets;
(vii) by its terms, individually or with all related Contracts, is reasonably expected to call for aggregate payments or receipts by DevvStream or any of its Subsidiaries under such Contract or Contracts of at least
$200,000 per year or $1,000,000 in the aggregate;
(viii) is any carbon streaming agreement;
(ix) is any strategic partnership agreement;
(x) is with (A) any Governmental Authority or (B) any DevvStream Related Person;
(xi) is a settlement, conciliation or similar agreement pursuant to which DevvStream or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement;
(xii) provides for any severance, retention, transaction or change in control bonus or equity, equity-based or phantom equity arrangement;
(xiii) obligates DevvStream or any of its Subsidiaries to provide continuing indemnification or a guarantee of obligations that would be expected to result in payments to a third party after the date hereof in excess
of $100,000;
(xiv) provides for the employment or engagement of any director, officer, employee or individual service provider, excluding offer letters providing for at-will employment that can be terminated without any
post-termination Liabilities;
(xv) is a Labor Agreement;
(xvi) obligates DevvStream or any of its Subsidiaries to make any capital commitment or expenditure in excess of $100,000 (including pursuant to any joint venture);
(xvii) (A) entered into with any third-party broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising partner or service
provider and (B) are material to the business of DevvStream or any of its Subsidiaries;
(xviii) provides for any guaranty, direct or indirect, of any obligation of a third party (other than DevvStream);
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(xix) constitutes a lease or master lease of personal property reasonably likely to result in annual payments of $25,000 or more in a 12-month period;
(xx) constitutes any contract providing for (A) the grant of any preferential rights of first offer or first refusal to purchase or lease any material asset of DevvStream or any of its Subsidiaries or (B) any
exclusive right to sell or distribute, or otherwise relating to the sale or distribution of, any product or service of DevvStream or any of its Subsidiaries;
(xxi) establishes any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture,
partnership or limited liability company;
(xxii) constitutes any Contract that obligates DevvStream or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any Person other than any loan or capital contribution
to, or investment in, (A) DevvStream or one of its wholly owned Subsidiaries, (B) any Person (other than an officer, director or employee of DevvStream or any of its Subsidiaries) that is less than $1,000,000 to such Person or (C)
any officer, director or employee of DevvStream or any of its Subsidiaries that is less than $50,000 to such person;
(xxiii) constitutes any obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, all or substantially all of the assets or stock of other persons;
(xxiv) constitutes any DevvStream IP Agreements (other than agreements for Off-the-Shelf Software);
(xxv) provides any third party a power of attorney;
(xxvi) relates to the future disposition or acquisition by DevvStream or any of its Subsidiaries of (A) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or
otherwise) or (B) any material assets or properties, except for any agreement related to the Transactions; or
(xxvii) involves the payment of any earnout or similar contingent payment on or after the date of this Agreement.
(b) With
respect to DevvStream Material Contracts: (i) each DevvStream Material Contract is valid and binding and enforceable in all respects against DevvStream and, to the Knowledge of DevvStream, each other party thereto, and is in full
force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions); (ii) the consummation of the Transactions will not affect the validity or enforceability of DevvStream Material
Contracts; (iii) neither DevvStream nor any of its Subsidiaries is in breach or default in any material respect, and to the Knowledge of DevvStream, no condition or event has occurred that with the passage of time or giving of
notice or both would constitute a material breach or default by DevvStream or any of its Subsidiaries, or permit termination or acceleration by the other party thereto, under such DevvStream Material Contract; (iv) to the
Knowledge of DevvStream, no other party to such DevvStream Material Contract is in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute
such a material breach or default by such other party, or permit termination or acceleration by DevvStream or any of its Subsidiaries, under such DevvStream Material Contract; (v) DevvStream and its Subsidiaries have received
neither written nor, to DevvStream’s Knowledge, oral notice of an intention by any party to any such DevvStream Material Contract that provides for a continuing obligation by any party thereto to terminate such DevvStream Material
Contract or amend the terms thereof, other than modifications in the ordinary course of business that, individually or in aggregate, are not reasonably expected to adversely affect DevvStream or any of its Subsidiaries in any
material respect; and (vi) neither DevvStream nor any of its Subsidiaries has waived any of their respective material rights under any such DevvStream Material Contract.
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6.15 Intellectual Property.
(a) Section 6.15(a) of the DevvStream Disclosure Schedules sets forth: (i) all registered Patents, Trademarks, Copyrights and Internet Assets and applications owned by DevvStream
or otherwise used or held for use by DevvStream or any of its Subsidiaries in which DevvStream or any of its Subsidiaries is the owner, applicant or assignee (“DevvStream Registered
IP”); and (ii) all material unregistered Intellectual Property, including proprietary Software, owned or purported to be owned by DevvStream or any of its Subsidiaries (for material Trade Secrets, only a general
description shall be disclosed).
(b) Section 6.15(b) of the DevvStream Disclosure Schedules sets forth all material Intellectual Property licenses, sublicenses and other agreements or permissions (“DevvStream IP Licenses”) (other than “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for Software commercially available on
reasonable terms to the public generally with license, maintenance, support and other fees of less than $50,000 per year (collectively, “Off-the-Shelf Software”), which
are not required to be listed, although such licenses are “DevvStream IP Licenses” as that term is used herein), under which DevvStream or any of its Subsidiaries is a licensee or otherwise is authorized to use or practice or have
rights to any Intellectual Property of any Person that is (i) incorporated into, or used in the authorship, invention, development, delivery, hosting or distribution of, the DevvStream Products; or (ii) used or held for use by
DevvStream in the conduct of its business.
(c) DevvStream
and its Subsidiaries either own or have valid and enforceable rights under a DevvStream IP License to use all Intellectual Property that is necessary and sufficient for, or used or held for use by DevvStream in, the conduct of its
business, in each case free and clear of any Liens (other than Permitted Liens). All of the DevvStream Registered IP is in full force and effect, subsisting, valid and enforceable. DevvStream or its Subsidiaries, as applicable,
(i) is the sole and exclusive owner of all right, title and interest in and to the Owned IP, in each case free and clear of any Liens (other than Permitted Liens); and (ii) has a valid and enforceable license or other rights to
use all Licensed IP. Neither DevvStream nor any of its Subsidiaries has dedicated to the public or otherwise allowed to fall into the public domain any material Owned IP.
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(d) DevvStream
and its Subsidiaries have provided the Company and Southern with true and complete copies of all material DevvStream IP Agreements, including all modifications, amendments and supplements thereto and waivers thereunder. Neither
DevvStream, any of its Subsidiaries nor, to the Knowledge of DevvStream, any other party thereto is, or is alleged to be, in breach of or default under, or has provided or received any notice of breach of, default under, or
intention to terminate (including by non-renewal), any DevvStream IP Agreement. DevvStream or its Subsidiaries, as applicable, have entered into binding, valid and enforceable, written Contracts with each current and former
employee and independent contractor who is or was involved in or has contributed to the invention, creation, or development of any Intellectual Property during the course of employment or engagement with DevvStream or any of its
Subsidiaries, as applicable, whereby such employee or independent contractor (i) acknowledges DevvStream’s exclusive ownership of all Intellectual Property invented, created, or developed by such employee or independent contractor
within the scope of his or her employment or engagement with DevvStream or any of its Subsidiaries, as applicable; (ii) grants to DevvStream or any of its Subsidiaries, as applicable, a present, irrevocable assignment of any
ownership interest such employee or independent contractor may have in or to such Intellectual Property, to the extent such Intellectual Property does not constitute a “work made for hire” under applicable Law; and (iii)
irrevocably waives any right or interest, including any moral rights, regarding any such Intellectual Property, to the extent permitted by applicable Law. All material assignments and other instruments necessary to establish,
record and perfect DevvStream’s ownership interest in the DevvStream Registered IP have been validly executed, delivered and filed with the relevant Governmental Authorities and authorized registrars. Neither the execution,
delivery or performance of this Agreement, nor the consummation of the Transactions, will result in the loss or impairment of, or require the consent of any other Person in respect of, DevvStream’s right to own or use any
Intellectual Property.
(e) The
DevvStream IP Licenses include all of the material licenses, sublicenses and other agreements or permissions necessary to operate DevvStream and its Subsidiaries as presently conducted.
(f) No
Action is pending or, to DevvStream’s Knowledge, threatened against DevvStream or any of its Subsidiaries that challenges the validity, enforceability, ownership or right to use, sell, license or sublicense, or that otherwise
relates to, any Intellectual Property currently licensed, used or held for use by DevvStream or any of its Subsidiaries, nor, to the Knowledge of DevvStream, is there any reasonable basis for any such Action. Since incorporation,
neither DevvStream nor any of its Subsidiaries has received any written or, to the Knowledge of DevvStream, notice or claim asserting or suggesting that any infringement, misappropriation, violation, dilution or unauthorized use
of the Intellectual Property of any other Person is or may be occurring or has or may have occurred, as a consequence of the business activities of DevvStream or any of its Subsidiaries, nor to the Knowledge of DevvStream is there
any reasonable basis therefor. There are no Orders to which DevvStream or any of its Subsidiaries is a party or its otherwise bound that (i) restrict the rights of DevvStream or any of its Subsidiaries to use, transfer, license or
enforce any Intellectual Property owned by DevvStream, (ii) restrict the conduct of the business of DevvStream or any of its Subsidiaries in order to accommodate a third Person’s Intellectual Property or (iii) grant any third
Person any right with respect to any Intellectual Property owned by DevvStream or any of its Subsidiaries. Neither DevvStream nor any of its Subsidiaries is currently infringing, or has, since incorporation, infringed,
misappropriated or violated any Intellectual Property of any other Person in connection with the ownership, use or license of any Intellectual Property owned or purported to be owned by DevvStream or any of its Subsidiaries or, to
the Knowledge of DevvStream, otherwise in connection with the conduct of the respective businesses of DevvStream and its Subsidiaries. To DevvStream’s Knowledge, no third party is currently, or in the past five (5) years has been,
infringing upon, misappropriating or otherwise violating any Intellectual Property owned, licensed by, licensed to or otherwise used or held for use by DevvStream or any of its Subsidiaries.
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(g) No
funding from any Governmental Authority or facilities of a university, college, other educational institution or non-profit organization was used in the development of the Owned IP, and no Governmental Authority, university,
college, other educational institution or non-profit organization has a claim or right to claim title to any Owned IP.
(h)
(i) DevvStream and its Subsidiaries have taken steps consistent with generally accepted industry standards, and in any event no less than all commercially reasonable steps, to safeguard and maintain the secrecy and
confidentiality of all Trade Secrets included in the Owned IP.
(ii) Neither DevvStream nor any of its Subsidiaries has authorized the disclosure of any Trade Secret included in the Owned IP, nor has any such Trade Secret been disclosed, in each case other than pursuant to a
written and enforceable non-disclosure agreement.
(iii) There has been no misappropriation of any Trade Secret included in the Owned IP or breach of any obligations of confidentiality with respect to such Trade Secrets.
(i) Neither
the execution, delivery nor performance of this Agreement or any other agreements referred to in this Agreement nor the consummation of any of the Transactions will, with or without notice or lapse of time, directly result in: (i)
a loss of or an Lien on any Owned IP; (ii) a breach of or default under, or right to terminate or suspend performance of, any DevvStream IP Agreement; (iii) the release, disclosure or delivery of any Trade Secrets within the Owned
IP by or to any escrow agent or other Person; (iv) the grant, assignment or transfer to any other Person of any license or other right or interest under, to or in any Owned IP. (v) DevvStream will own all right, title and interest
in and to, or otherwise have a license to, all Owned IP and Licensed IP on identical terms and conditions as DevvStream enjoyed immediately prior to the Closing.
(j) The
Source Code for Software within the Owned IP and the Source Code for Software included in all DevvStream Products (A) has at all times been maintained in confidence, and has been disclosed only to employees and consultants having
a “need to know” the contents thereof in connection with the performance of their duties and who are bound by confidentiality obligations of customary scope with respect to Source Code; and (B) has not been delivered, licensed or
made available to any escrow agent or other Person, and neither DevvStream nor any of its Subsidiaries has any duty or obligation to deliver, license or make available such Source Code to any escrow agent or other Person.
(k) Neither
DevvStream nor any of its Subsidiaries has (i) used any Open Source Software in such a way that (A) obligates DevvStream to make any Software within the Owned IP available free of charge, available in source code form, or reverse
engineerable, (B) grants or purports to grant to any third Person any rights or immunities under any Intellectual Property within the Owned IP, or (C) requires any DevvStream Products or any portion thereof, to be subject to a
Copyleft License; or (ii) contributed any Software within the Owned IP to an open source project or made any such Software available to any other Person under an open source license.
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(l) The
DevvStream Products do not contain any malicious or surreptitious code or device, such as a virus, worm, time or logic bomb, disabling device, Trojan horse or other malicious or surreptitious code designed to: (i) disrupt or
damage any licensee’s use of the DevvStream Products or related computer systems; (ii) erase, destroy or corrupt any licensee’s files or data; or (iii) bypass any technical security measure, or masquerade as compliant, so as to
obtain access to any of licensee’s hardware or software in contravention of such technical security measures.
(m) DevvStream
and its Subsidiaries own or have a valid license in all of the DevvStream Systems necessary to operate the business of DevvStream and its Subsidiaries as currently conducted. DevvStream and its Subsidiaries have taken commercially
reasonable measures to protect and maintain the security of the DevvStream Systems and all information stored or contained therein from any unauthorized use, access, interruption or modification by any Person. The DevvStream
Systems (i) operate and perform in all material respects in accordance with their documentation and as required by the business of DevvStream and its Subsidiaries as currently conducted; (ii) have not suffered any material
persistent substandard performance, breakdown or failure since DevvStream’s incorporation; (iii) are free from any material defects; (iv) do not contain any virus, Software or hardware component designed to permit unauthorized
access or to disable or otherwise harm or disable any System whether automatically with the passage of time or under the positive control of a Person; (v) are in good repair and operating condition and are adequate and suitable
(including with respect to working condition, license seats, performance and capacity) for the purposes for which they are currently being used; and (vi) are sufficient to operate the business of DevvStream and its Subsidiaries
after the Closing in substantially the same manner as conducted in the twelve (12) months prior to the Closing and constitute all of the Systems reasonably necessary to conduct the business of DevvStream and its Subsidiaries as
currently conducted.
6.16 Taxes and Returns.
(a) DevvStream
and each of its Subsidiaries have timely filed, or caused to be timely filed, all material Tax Returns required to be filed by it (taking into account all available extensions properly obtained), which such Tax Returns are true,
accurate, correct and complete in all material respects, and has paid, collected or withheld, or caused to be paid, collected or withheld, all material Taxes required to be paid, collected or withheld. DevvStream and each of its
Subsidiaries have complied in all material respects with all applicable Laws relating to Taxes.
(b) There
is no Action currently pending or threatened in writing against DevvStream or any of its Subsidiaries by a Governmental Authority in a jurisdiction where DevvStream or such Subsidiary does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction.
(c) There
are no claims, assessments, audits, examinations, investigations or other Actions by any Taxing Authority in progress or pending against DevvStream or any of its Subsidiaries in respect of any Tax, and neither DevvStream nor any
of its Subsidiaries has been notified in writing, or to the Knowledge of DevvStream, orally, of any proposed Tax claims or assessments against it (other than, in each case, claims or assessments for which adequate reserves in the
DevvStream Financial Statements have been established in accordance with GAAP for DevvStream Financial Statements delivered as of the date hereof) or that any such audit, examination, investigation or other Action is contemplated.
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(d) Neither
DevvStream nor any of its Subsidiaries has any liability for Taxes of any Person (other than DevvStream and its Subsidiaries) (i) under any Tax indemnity, Tax sharing or Tax allocation agreement or any other contractual obligation
(excluding for this purpose, agreements entered into in the ordinary course of business the primary purpose of which is not related to Taxes, such as leases, licenses or credit agreements), (ii) arising from the application of
U.S. Treasury Regulations Section 1.1502-6 or any analogous provision of state, local or non-U.S. Law or (iii) as a transferee or successor, by Contract (excluding for this purpose, Contracts entered into in the ordinary course of
business the primary purpose of which is not related to Taxes, such as leases, licenses or credit agreements) or by operation of Law.
(e) There
are no Liens with respect to any Taxes upon DevvStream’s or any of its Subsidiaries’ assets, other than Liens described in clause (a) of the definition of Permitted Liens.
(f) DevvStream
and each of its Subsidiaries have collected or withheld all material Taxes currently required to be collected or withheld by them, and all such Taxes have been paid to the appropriate Governmental Authorities or set aside in
appropriate accounts for future payment when due.
(g) Neither
DevvStream nor any of its Subsidiaries has any outstanding waivers or extensions of any applicable statute of limitations to assess any material amount of Taxes. There are no outstanding requests by DevvStream of any of its
Subsidiaries for any extension of time within which to file any Tax Return or within which to pay any Taxes shown to be due on any Tax Return.
(h) Neither
DevvStream nor any of its Subsidiaries has made any change in accounting methods (except as required by a change in Law) or received a ruling from, or signed an agreement with, any Taxing Authority that would reasonably be
expected to have a material impact on its Taxes following the Closing.
(i) Neither
DevvStream nor any of its Subsidiaries is, or has ever been, a member of an “affiliated group” as defined in Section 1504(a) of the Code or any affiliated, combined, unitary, consolidated or similar group under state, local or
non-U.S. Law (other than a group all of the members of which consisted of DevvStream and its Subsidiaries).
(j) Neither
DevvStream nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying (or intended
to qualify) in whole or in part for tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) or Section 361 of the Code.
(k) DevvStream
is, and since its inception has been, properly characterized as a corporation for U.S. federal income tax purposes. Each Subsidiary of DevvStreamis, and since its inception has been, properly treated for U.S. federal income tax
purposes in the manner set forth in Section 6.16(k) of the DevvStream Disclosure Schedules
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(l) Neither
DevvStream nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing
Date as a result of any of the following that occurred or existed on or prior to the Closing with respect to DevvStream or any of its Subsidiaries (in each case where there is a reference to the Code or Treasury Regulations,
including any corresponding or similar provision of state, local or non-U.S. legal or regulatory requirements): (i) an installment sale or open transaction, (ii) a prepaid amount received or deferred revenue recognized outside the
ordinary course of business, (iii) an intercompany item under Treasury Regulations Section 1.1502-13 or an excess loss account under Treasury Regulations Section 1.1502-19, or (iv) a change in or use of an improper accounting
method, including pursuant to Section 481 of the Code.
(m) No
“closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. legal or regulatory requirements), private letter rulings, technical advice memoranda or similar
agreements or rulings have been requested, entered into or issued by any Taxing Authority with respect to DevvStream or any of its Subsidiaries which agreement or ruling would be effective after the Closing Date (or, for the
avoidance of doubt, that would require DevvStream or any of its Subsidiaries to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof)
ending after the Closing Date).
(n) Neither
DevvStream nor any of its Subsidiaries: (i) has consented to extend the time in which any Tax may be assessed or collected by any Taxing Authority (other than ordinary course extensions of time to file Tax Returns), which
extension is still in effect; or (ii) has entered into or been a party to any “listed transaction” within the meaning of Section 6707A(c)(2) of the Code and Treasury Regulations Section 1.6011-4(b)(2).
(o) Neither
DevvStream nor any of its Subsidiaries has taken or agreed to take any action, nor does it intend to or plan to take any action, or have any knowledge of any fact or circumstance that could reasonably be expected to prevent the
Transactions from qualifying for the Intended US Tax Treatment (with the exception of any actions specifically contemplated by this Agreement).
(p) There
are no circumstances existing which could result in the application to DevvStream or any of its Subsidiaries of Sections 17, 78, 80, 80.01, 80.02, 80.03, 80.04 or Subsection 160(1) of the ITA or any analogous provision of any
comparable Law of any province or territory of Canada.
(q) The
terms and conditions made or imposed in respect of every transaction (or series of transactions) between DevvStream or any of its Subsidiaries and any Person that is (i) a nonresident of Canada for purposes of the ITA, and (ii)
not dealing at arm’s length with DevvStream or any of its Subsidiaries, as applicable, for purposes of the ITA, do not differ from those that would have been made between persons dealing at arm’s length for purposes of the ITA,
and all documentation or records as required by applicable Law have been made or obtained in respect of such transactions (or series of transactions).
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(r) Neither
DevvStream nor any of its Subsidiaries has participated in any transactions which are subject to the reporting requirements under section 237.3 or section 237.5 of the ITA, or the notification requirements under section 237.4 of
the ITA.
(s) The
Domestication will not result in any liability for Taxes of DevvStream pursuant to subsections 128.1(4) or 219.1(1) of the ITA or otherwise.
6.17 Real Property.
(a) The
leases set forth on Section 6.17(a) of the DevvStream Disclosure Schedule (the “DevvStream Leases”) are the
only Contracts pursuant to which DevvStream leases any real property. Neither DevvStream nor any of its Subsidiaries is a party to, or under any agreement to become a party to, any lease with respect to real property other than
DevvStream Leases, copies of which have been provided to the Company and Southern. Each DevvStream Lease is in good standing, creates a good and valid leasehold estate in the leased properties thereby demised and is in full force
and effect without amendment, except as set forth on Section 6.17(a) of the DevvStream Disclosure Schedules. With respect to each DevvStream Lease, (a) such DevvStream
Lease (or a notice in respect of such DevvStream Lease) has been properly registered in the appropriate land registry office, (b) all rents and additional rents have been paid, (c) no waiver, indulgence or postponement of the
lessee’s obligations has been granted by the lessor, (d) there exists no event of default or event, occurrence, condition or act (including the purchase of DevvStream Securities) which, with the giving of notice, the lapse of time
or the happening of any other event or condition, would become a default under the DevvStream Lease and (e) to the knowledge of DevvStream, all of the covenants to be performed by any other party under such DevvStream Lease have
been fully performed.
(b) Each
of the leased properties is adequate and suitable for the purposes for which it is presently being used and DevvStream or its Subsidiaries, as applicable, has adequate rights of ingress and egress into each of the leased
properties for the operation of the business in the ordinary course. Section 6.17(b) of the DevvStream Disclosure Schedules sets forth all of the DevvStream Leases
setting out, in respect of each DevvStream Lease, a description of the leased premises (by municipal address and proper legal description), the term of the DevvStream Lease, the rental payments under the DevvStream Lease
(specifying any breakdown of base rent and additional rents), any rights of renewal and the term thereof, and any restrictions on assignment, change of control of DevvStream or amalgamation.
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6.18 Personal Property. Each item of Personal Property that is currently owned, used or leased by DevvStream or any of its Subsidiaries, as applicable, with a book value or fair market value of
greater than Twenty-Five Thousand Dollars ($25,000) is set forth on Section 6.18 of the DevvStream Disclosure Schedules, along with, to the extent applicable, a list of
lease agreements, lease guarantees, security agreements and other agreements related thereto, including all amendments, terminations and modifications thereof or waivers thereto (“DevvStream
Personal Property Leases”). Except as would not be material to DevvStream or any of its Subsidiaries, or as set forth in Section 6.18 of the DevvStream
Disclosure Schedules, all such items of Personal Property are in good operating condition and repair (reasonable wear and tear excepted consistent with the age of such items) and are suitable for their intended use in the business of
DevvStream. The operation of DevvStream’s business as it is now conducted or presently proposed to be conducted is not in any material respect dependent upon the right to use the Personal Property of Persons other than DevvStream,
except for such Personal Property that is owned, leased or licensed by or otherwise contracted to DevvStream. The DevvStream Personal Property Leases are valid, binding and enforceable in accordance with their terms and are in full
force and effect. No event has occurred that (whether with or without notice, lapse of time or both or the happening or occurrence of any other event) would constitute a material default on the part of DevvStream or, to the Knowledge
of DevvStream, any other party under any of the DevvStream Personal Property Leases, and neither DevvStream nor any of its Subsidiaries has received notice of any such condition.
6.19 Title to and Sufficiency of Assets. DevvStream and its Subsidiaries have good and marketable title to, or, in the case of leased or subleased assets, a valid leasehold interest in or right
to use, all of their respective material assets, free and clear of all Liens other than (a) Permitted Liens, (b) the rights of lessors under leasehold interests and (c) Liens set forth in the DevvStream Financial Statements
(collectively, the “DevvStream Assets”). The DevvStream Assets (including Intellectual Property rights and contractual rights) of DevvStream and its Subsidiaries, taken as a
whole, constitute all of the material assets, rights and properties that are used in the operation of the businesses of DevvStream and its Subsidiaries as they are now conducted or that are used or held by DevvStream or any of its
Subsidiaries for use in the operation of the business of DevvStream or any of its Subsidiaries.
6.20 Employee Matters.
(a) DevvStream
is not party to, or bound by, any Labor Agreement, and has never been party to, or bound by, any such Contract. There are no unfair labor practice charges, material labor grievances, labor arbitrations, labor strikes, slowdowns,
work stoppages, boycotts, picketing, handbilling, lockouts, or other material labor disputes, or to DevvStream’s Knowledge threat of any of the foregoing, or, to DevvStream’s Knowledge, union organizing activity or demand or
petition for representation or certification, by or with respect to any of the employees of DevvStream, and no such activities or disputes have occurred (including any representation or certification proceedings brought or filed
with the National Labor Relations Board or any other labor relations tribunal or authority) since DevvStream’s incorporation. No employees of DevvStream are represented by any labor organization, labor or trade union, or works
council with respect to their employment with DevvStream. DevvStream has not engaged in any unfair labor practices since its incorporation. With respect to the Transactions, DevvStream has satisfied in all material respects any
pre-signing or, as of the Closing, pre-Closing notice, consultation or other obligations owed to its employees or their representatives under applicable Law or Labor Agreement.
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(b) DevvStream
is and since its incorporation has been in compliance in all material respects with all applicable Laws respecting labor, employment and employment practices, including Laws regarding terms and conditions of employment, health and
safety, wages and hours, discrimination, harassment, retaliation, whistleblowing, disability, labor relations, worker classification, Tax withholding, hours of work, payment of wages and overtime wages, pay equity, immigration
(including the completion of Forms I-9 and confirmation of visas), workers’ compensation, unemployment insurance, working conditions, equal opportunity, affirmative action, employee leave and other time off, COVID-19, and employee
terminations (including plant closures and layoffs), and has not received written or, to the Knowledge of DevvStream, oral notice that there is any instance of noncompliance in any of the foregoing respects. Except as would not
result in material liability to DevvStream, DevvStream (i) has since its incorporation correctly classified all current and former exempt and non-exempt employees, individual independent contractors, leased employees, and other
non-employee service providers for all applicable purposes, (ii) is not liable for any past due arrears of wages, salaries, premiums, commissions, bonuses, severance, termination payments, fees, or other compensation due to
current or former employees, independent contractors or other individual service providers of DevvStream since its incorporation or any fine, Tax, interest or penalty for failure or delinquency to pay the foregoing and (iii) is
not liable for any material payment to any Governmental Authority with respect to unemployment or workers’ compensation benefits, social security or other benefits, insurance, Taxes or obligations for employees, independent
contractors or other individual service providers due since DevvStream’s incorporation (other than routine payments to be made in the ordinary course of business and consistent with past practice). There are no Actions pending or,
to DevvStream’s Knowledge, threatened, and there have been no such Actions since DevvStream’s incorporation, by or against DevvStream brought by or against any applicant for employment, any current or former employee, consultant,
independent contractor or other individual service provider, any Person alleging to be a current or former employee, contractor or individual service provider, or any Governmental Authority or any other Person relating to
violations of labor or employment Laws, or making any other allegation relating to the employment of or services rendered by such Person including alleging breach of any express or implied contract of employment or engagement,
wrongful termination of employment or engagement, or alleging any other discriminatory, wrongful or tortious conduct in connection with the employment or service relationship. To DevvStream’s Knowledge, (A) no employee or
individual service provider intends to terminate his or her employment with or services to DevvStream, and (B) no current or former employee or individual service provider is in any material respect in violation of any employment
agreement, nondisclosure obligation, fiduciary duty, restrictive covenant or other obligation (I) owed to DevvStream or (II) owed to any third party with respect to such person’s right to be employed or engaged by DevvStream.
(c) Section 6.20(c) of the DevvStream Disclosure Schedules sets forth a complete and accurate list of all employees and individual service providers of DevvStream, as of the date
hereof, including each such individual’s (i) name, (ii) job title or services description, (iii) employing or engaging entity, (iv) work location, (v) compensation rate and method, (vi) hire or engagement date, (vii) status as
exempt or non-exempt from overtime requirements (for employees), (viii) leave status and (ix) accrued vacation or paid time off.
(d) There
has not at any time since DevvStream’s incorporation been any, and there is no pending or, to the Knowledge of DevvStream, threatened, any allegation, investigation (including any internal investigation), complaint, lawsuit or
Action concerning any Misconduct with respect to any DevvStream employee, contractor, or other service provider (and, where required, DevvStream has taken corrective action in response to).
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6.21 Benefit Plans.
(a) “DevvStream Benefit Plan” means each Benefit Plan that is sponsored, maintained, contributed to or required to be contributed by DevvStream or any of its Subsidiaries or under
which DevvStream or any of its Subsidiaries has any liability or obligation (including any contingent liability or obligation).
(b) Set
forth on Section 6.21(b) of the DevvStream Disclosure Schedules is a true and complete list of each material DevvStream Benefit Plan (other than any at-will offer letter
that does not provide for equity-based or phantom equity awards, retention, change in control, severance or termination benefits and is on the standard form of offer letter set forth on Section 6.21(b) of the DevvStream Disclosure Schedules). With respect to each material DevvStream Benefit Plan, DevvStream and its Subsidiaries have provided to Southern and the Company or their respective
counsel true and complete copies, to the extent applicable, of (i) each writing constituting a part of such DevvStream Benefit Plan, including all plan documents and amendments thereto, or if not in writing, a summary of such
DevvStream Benefit Plan, (ii) the most recent annual report (IRS Forms 5500 series), (iii) any related trust documents and the most recent summary plan description distributed to participants (and any summaries of material
modifications thereto), and (iv) any non-routine correspondence with any Governmental Authority. Each DevvStream Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code timely received a
current, favorable determination, advisory or opinion letter from the IRS, and, to DevvStream’s Knowledge, nothing has occurred that could reasonably be expected to adversely affect the qualified status of any such DevvStream
Benefit Plan.
(c) No
DevvStream Benefit Plan is, and neither DevvStream nor any of its Subsidiaries sponsors, maintains or contributes to (or have any obligation to contribute to), or has any liability under or with respect to any: (i) “defined
benefit plan” (as defined in Section 3(35) of ERISA) or any plan that is or was subject to Title IV of ERISA or Section 412 or 430 of the Code, (ii) “multiemployer plan,” as defined in Section 3(37) of ERISA, (iii) “multiple
employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA, or (iv) “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). Neither DevvStream nor any of its Subsidiaries has
any Liability on account of being considered a single employer under Section 414 of the Code with any other Person. No DevvStream Benefit Plan provides, and neither DevvStream nor any of its Subsidiaries has any obligation to
provide, retiree or post-employment health or life insurance or any other retiree or post-employment welfare-type benefits to any Person other than as required under Section 4980B of the Code or any similar state Law and for which
the covered Person pays the full cost of coverage.
(d) With
respect to each DevvStream Benefit Plan: (i) such DevvStream Benefit Plan is and has at all times been operated, maintained, funded and administered in all material respects in accordance with its terms, and applicable Laws; (ii)
there have been no “prohibited transactions” within the meaning of Section 4975 of the Code or Section 406 or 407 of ERISA that are not otherwise exempt under Section 408 of ERISA; (iii) no material Action is pending, or to
DevvStream’s Knowledge, threatened (other than routine claims for benefits arising in the ordinary course of administration); and (iv) all material contributions, distributions, reimbursements and premiums due through the Closing
Date have been timely made and all such amounts for any period ending on or before the Closing Date that are not yet due have been made or properly accrued on the DevvStream Financial Statements. Neither DevvStream nor any of its
Subsidiaries has incurred (whether or not assessed) or is reasonably expected to incur or to be subject to, any material Tax or other penalty with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as
applicable, or under Section 4980B, 4980D or 4980H of the Code.
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(e) Neither
the execution and delivery of this Agreement nor the consummation of the Transactions could (either alone or in combination with another event) (i) result in any payment or benefit, or increase in the amount of any compensation or
benefits due, to any current or former employee, officer, director or other individual service provider of DevvStream or any of its Subsidiaries; (ii) result in the acceleration of the time of payment or vesting, or trigger any
payment or funding of any compensation or benefits due to any current or former employee, officer, director or other individual service provider of DevvStream or any of its Subsidiaries; (iii) except as required under the terms of
this Agreement or by applicable Law, restrict the ability of DevvStream to merge, amend or terminate any material DevvStream Benefit Plan; (iv) result in the forgiveness of any employee or service provider loan; or (v) result in
the payment of any amount (whether in cash or property or the vesting of property) that could, individually or in combination with any other such payment, constitute an “excess parachute payment” (within the meaning of Section
280G(b)(1) of the Code). No person is entitled to receive, and neither DevvStream nor any of its Subsidiaries has any current or contingent obligation to provide, any payment (including any tax gross-up or other payment),
indemnification, reimbursement or otherwise be made whole from DevvStream as a result of the imposition of any excise taxes required by any applicable Laws, including under Section 4999 or Section 409A of the Code (or any
corresponding provisions of state, local or foreign Tax law).
(f) Each
DevvStream Benefit Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in all
respects in operational compliance with, and is in all respects in documentary compliance with, Section 409A of the Code and all IRS guidance promulgated thereunder, and no amount under any such plan, agreement or arrangement is,
has been or could reasonably be expected to be subject to any additional Tax, interest or penalties under Section 409A of the Code.
6.22 Environmental Matters.
(a) The
DevvStream and its Subsidiaries have, since incorporation have been, in compliance in all material respects with all applicable Environmental Laws, including obtaining, maintaining, and complying in all material respects with all
Permits required under Environmental Laws for the operation of its business and the occupation of its properties and facilities.
(b) Neither
DevvStream nor any of its Subsidiaries has received any Order, notice or written report from any Governmental Authority regarding any actual or alleged material violation of, or material Liability under, Environmental Laws.
(c) Neither
DevvStream nor any of its Subsidiaries have treated, stored, arranged for or permitted the disposal of, transported, handled, distributed, exposed any person to or Released Hazardous Materials, including on any property owned, or
operated on, by DevvStream or any of its Subsidiaries and no such property owned or operated on by DevvStream or any of its Subsidiaries is contaminated by Hazardous Materials, in each case so as to give rise to any Environmental
Liabilities of DevvStream.
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(d) Neither
DevvStream nor any of its Subsidiaries is party to any Contract pursuant to which DevvStream or such Subsidiary provided an indemnity with respect to, or has otherwise become subject to (either by Contract or operation of Law),
any Environmental Liability of any other Person under Environmental Laws or relating to Hazardous Materials.
(e) DevvStream
has provided to the Company and Southern all environmental audits, assessments and reports and other material environmental, health or safety documents relating to DevvStream’s past or current properties, facilities or operations
on DevvStream’s properties and facilities that are in DevvStream and its Subsidiaries’ possession or, to the Knowledge of DevvStream, under its reasonable control.
6.23 Related Person Transactions. Except as set forth on Section 6.23 of the DevvStream Disclosure Schedules, neither DevvStream nor
any of its Affiliates, nor any officer, director, manager, employee, trustee or beneficiary of DevvStream or any of its Affiliates, nor any immediate family member of any of the foregoing (whether directly or indirectly through an
Affiliate of such Person) (each of the foregoing, a “DevvStream Related Person”) is presently, or since January 1, 2025, has been, a party to any transaction with DevvStream,
including any Contract or other arrangement (a) providing for the furnishing of services by (other than as officers, directors or employees of DevvStream), (b) providing for the rental of real property or Personal Property from or (c)
otherwise requiring payments to (other than for services or expenses as directors, officers or employees of DevvStream in the ordinary course of business consistent with past practice) any DevvStream Related Person or any Person in
which any DevvStream Related Person has an interest as an owner, officer, manager, director, trustee or partner or in which any DevvStream Related Person has any direct or indirect interest.
6.24 Insurance.
(a) A
list of all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) held by DevvStream, as of the date hereof, relating to DevvStream or its business, properties, assets,
directors, officers and employees, copies of which have previously been made available to the Company and Southern is set forth on Section 6.24(a) of the DevvStream
Disclosure Schedules. All premiums due and payable under all such insurance policies have been timely paid and DevvStream is otherwise in material compliance with the terms of such insurance policies and each such insurance policy
(i) is legal, valid, binding, enforceable and in full force and effect and (ii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the Closing. Neither DevvStream nor
any of its Subsidiaries has any self-insurance or co-insurance programs. Since the date of DevvStream’s incorporation, neither DevvStream nor any of its Subsidiaries has received any notice from, or on behalf of, any insurance
carrier relating to or involving any adverse change or any change other than in the ordinary course of business, in the conditions of insurance, any refusal to issue an insurance policy or non-renewal of a policy.
(b) The
DevvStream and its Subsidiaries have reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such a claim would not be reasonably
likely to be material to DevvStream or any of its Subsidiaries. To the Knowledge of DevvStream, no event has occurred, and no condition or circumstance exists, that would reasonably be expected to (with or without notice or lapse
of time) give rise to or serve as a basis for the denial of any such material insurance claim. Since incorporation, neither DevvStream nor any of its Subsidiaries has made any claim against an insurance policy as to which the
insurer is denying or has denied coverage.
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6.25 Books and Records. All of the financial books and records of DevvStream and its Subsidiaries are complete and accurate in all material respects and have been maintained in the ordinary
course of business consistent with past practice and in accordance with applicable Laws.
6.26 Certain Business Practices.
(a) Neither
DevvStream or any of its Subsidiaries nor any of their respective officers, directors, employees or other individual service providers, nor to the Knowledge of DevvStream, any agent or other third party representative acting on
behalf of DevvStream or any of its Subsidiaries, (a) is currently, or has been since incorporation: (i) a Sanctioned Person; (ii) engaging in any dealings or transactions with or for the benefit of any Sanctioned Person or in any
Sanctioned Country; (iii) engaging in any export, reexport, transfer or provision of any goods, software, technology, data or service without, or exceeding the scope of, any required or applicable licenses or authorizations under
all applicable Ex-Im Laws; or (iv) otherwise in violation of Sanctions, Ex-Im Laws, or U.S. anti-boycott Laws (collectively, “Trade Controls”); or (b) has at any time (i)
made or accepted any unlawful payment or given, received, offered, promised, or authorized or agreed to give or receive, any money, advantage or thing of value, directly or indirectly, to or from any employee or official of any
Governmental Authority or any other Person in violation of Anti-Corruption Laws; or (ii) otherwise been in violation of any Anti-Corruption Laws.
(b) Neither
DevvStream nor any of its Subsidiaries has received from any Governmental Authority or any Person any notice, inquiry, or internal or external allegation; made any voluntary or involuntary disclosure to a Governmental Authority;
or conducted any internal investigation or audit concerning any actual or potential violation or wrongdoing in each case, related to Trade Controls or Anti-Corruption Laws.
(c) Neither
DevvStream nor any of its Subsidiaries is a “TID U.S. Business,” as such term is defined in 31 C.F.R. § 800.248.
6.27 Compliance with Privacy Laws, Privacy Policies and Certain Contracts.
(a) The
DevvStream and its Subsidiaries, and to the Knowledge of DevvStream, their respective officers, directors, employees, agents, subcontractors, vendors and other individual service providers to whom DevvStream or any of its
Subsidiaries, as applicable, has given access to Personal Data, are and have been at all times, in compliance in all material respects with (i) all applicable Privacy Laws, (ii) DevvStream’s and its Subsidiaries’ privacy policies,
(iii) all industry and self-regulatory standards governing Personal Data, privacy, data security, and data protection to which DevvStream or any of its Subsidiaries are bound or to which they purport to adhere (including, as
applicable, the Payment Card Industry Data Security Standard), and (iv) DevvStream’s and its Subsidiaries’ contractual obligations concerning Personal Data, privacy, data protection, cybersecurity, data security and the security
of DevvStream’s and each of its Subsidiaries’ information technology systems, and neither the execution, delivery nor performance of this Agreement or any other agreements referred to in this Agreement nor the consummation of any
of the Transactions will, with or without notice or lapse of time, directly result in any violation of the foregoing clauses (i)–(iv) in any material respect;
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(b) To
the Knowledge of DevvStream, neither DevvStream nor any of its Subsidiaries has experienced any material loss, damage or unauthorized access, use, disclosure, modification or breach of security of Personal Data maintained by or on
behalf of DevvStream (including, to the Knowledge of DevvStream, by any agent, subcontractor or vendor of DevvStream); and
(c) To
the Knowledge of DevvStream, (i) no Person, including any Governmental Authority, has made any written claim or commenced any Proceeding with respect to any violation of any Privacy Law by DevvStream or any of its Subsidiaries;
and (ii) DevvStream has not been given written notice of any criminal, civil or administrative violation of any Privacy Law, in any case including any claim or Action with respect to any loss, damage or unauthorized access, use,
disclosure, modification or breach of security, of Personal Data maintained by or on behalf of DevvStream or any of its Subsidiaries (including by any agent, subcontractor or vendor of DevvStream).
6.28 Investment Company Act. Neither DevvStream nor any of its Subsidiaries is an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment
company,” or required to register as an “investment company,” in each case within the meaning of the Investment Company Act.
6.29 Finders and Brokers. Except as set forth on Section 6.29 of the DevvStream Disclosure Schedules, neither DevvStream nor any of
its Subsidiaries has any Liability in connection with this Agreement or the Ancillary Documents, or the Transactions, that would result in the obligation of DevvStream or any of its Subsidiaries, or any of their respective Affiliates,
to pay any finder’s fee, brokerage or agent’s commissions or other like payments.
6.30 Independent Investigation. DevvStream has conducted its own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or
otherwise) or assets of Southern and the Company and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of Southern and the Company
for such purpose. DevvStream acknowledges and agrees that: (a) in making its decision to enter into this Agreement, the Ancillary Documents to which it is a party and to consummate the Transactions, it has relied solely upon its own
investigation and the express representations and warranties of Southern set forth in Article IV (including the related portions of the Southern Disclosure Schedule),
Southern Merger Sub and DevvStream Merger Sub set forth in Article V, and the Company set forth in Article VII (including
the related portions of the Company Disclosure Schedule) and in any certificate delivered to DevvStream by the Company, Southern, Southern Merger Sub or DevvStream Merger Sub pursuant hereto; and (b) neither Southern,
the Company nor any of their Representatives has made any representation or warranty, express or implied, as to the Company, Southern, Southern Merger Sub or DevvStream Merger Sub, this Agreement, the Transactions, or any information
or materials regarding the foregoing furnished or made available to DevvStream, except as expressly set forth in Article IV, Article
V, and Article VII (including the related portions of the Company Disclosure Schedules and Southern Disclosure Schedules) or in any certificate delivered to
DevvStream by the Company, Southern, Southern Merger Sub or DevvStream Merger Sub pursuant hereto.
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6.31 Information Supplied. None of the information supplied or to be supplied by DevvStream expressly for inclusion or incorporation by reference: (a) in any current report on Form 8-K, and any
exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority or stock exchange with respect to the Transactions; (b) in the Registration Statement; or (c) the Company Proxy Statement,
the DevvStream Circular and other mailings or other distributions to the Company Shareholders, Southern Shareholders, DevvStream Shareholders or prospective investors with respect to the consummation of the Transactions or in any
amendment to any of documents identified in (a) through (c), will, when filed, made available, mailed or distributed, as the case may be, including on the Closing Date, contain or will contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, other than in the case of the Registration Statement, in light of the circumstances under which they are made, not
misleading. None of the information supplied or to be supplied by DevvStream expressly for inclusion or incorporation by reference in any press release or filing will, when filed or distributed, as applicable, contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
Notwithstanding the foregoing, neither DevvStream nor any of its Subsidiaries makes any representation, warranty or covenant with respect to any information supplied by or on behalf of the Company, Southern or their respective
Affiliates.
6.32 DevvStream SEC Documents. Since November 6, 2024, DevvStream has filed with or furnished to (as applicable) the SEC all registration statements, prospectuses, forms, reports, definitive
proxy statements, schedules and documents and related exhibits required to be filed or furnished by it under the Securities Act or the Exchange Act, as the case may be, together with all certifications required pursuant to SPX (such
documents and any other documents filed or furnished by DevvStream with the SEC since November 6, 2024, as have been supplemented, modified or amended since the time of filing, collectively, the “DevvStream SEC Documents”). As of their respective filing dates or, if supplemented, modified or amended since the time of filing, as of the date of the most recent supplement, modification or amendment, the
DevvStream SEC Documents (a) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading and (b) complied as to form in all material respects with all applicable requirements of the Exchange Act or the Securities Act, as the case may be, in each case as in effect on
the date each such document was filed with or furnished to the SEC. None of DevvStream Subsidiaries is currently required to file periodic reports with the SEC. As of the date of this Agreement, there are no material outstanding or
unresolved comments received from the SEC with respect to any of the reports filed by DevvStream with the SEC. Since November 6, 2024, DevvStream has been and is in compliance in all material respects with the applicable provisions of
SOX and the applicable listing and corporate governance rules and regulations of the Nasdaq. Neither DevvStream nor any DevvStream Subsidiary has outstanding, or has arranged any outstanding, “extension of credit” to any director or
executive officer within the meaning of Section 402 of SOX. With respect to each annual report on Form 10-K and each quarterly report on Form 10-Q included in DevvStream SEC Documents, the “principal executive officer” and “principal
financial officer” of DevvStream (as such terms are defined under SOX) have made all certifications required by Rules 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of the SOX.
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6.33 No Collateral Benefit. To the knowledge of DevvStream, no “related party” of DevvStream (as such term is defined in MI 61-101), together with its “associated entities” (as such term is
defined in MI 61-101), beneficially owns or exercises control or direction over 1% or more of the outstanding DevvStream Shares, except for related parties who will not receive a “collateral benefit” (as such term is defined in MI
61-101) as a consequence of the Transactions.
6.34 Competition Act. The aggregate value of the assets in Canada that are owned by DevvStream and its Subsidiaries, and the gross revenues from sales in, from or into Canada generated by
DevvStream and its Subsidiaries, both as determined in accordance with Part IX of the Competition Act and the Notifiable Transactions Regulations thereunder, do not exceed 93,000,000 Canadian dollars.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in (a) the disclosure schedules delivered by the Company to Southern and DevvStream on the
date hereof (the “Company Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer or (b)
as disclosed in the Company SEC Documents publicly filed or furnished prior to the date of this Agreement and after June 6, 2025 (other than disclosures in the “Risk Factors” section of any such filings and any disclosure of risks
included in any “forward-looking statements” disclaimer contained in any such filings, in each case, to the extent such disclosures are predictive, cautionary or forward-looking in nature) to the extent the relevance of such
disclosure as an exception to (or disclosure for the purpose of) a representation or warranty is reasonably apparent, the Company hereby represents and warrants to Southern and DevvStream that each of the following representations are
true and correct as of the date of this Agreement and as of the Closing Date (except, as to any representations and warranties that specifically relate to an earlier date, in which case such representations and warranties were true
and correct as of such earlier date):
7.1 Organization and Standing. The Company is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware, and has the requisite corporate power
and capacity to own, lease and operate its properties and to carry on its business as now being conducted. The Company is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of
the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified or licensed or in good standing has not and would
not, individually or in the aggregate, reasonably be expected to have (i) a Material Adverse Effect on the Company or (ii) a material adverse effect on the ability of the Company to enter into this Agreement or consummate the
Transactions (clause (i) or (ii), a “Company Material Adverse Effect”). The Company has heretofore made available (including via the Company SEC Documents) to the Parties
accurate and complete copies of its Organizational Documents, as currently in effect as of the date hereof. The Company is not in violation of any provision of its Organizational Documents in any material respect. The Company is not
the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.
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7.2 Authorization; Binding Agreement.
(a) The
Company has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is a party, to perform its obligations hereunder and thereunder and to consummate the
Transactions, subject to the receipt of the Required Company Shareholder Approval. The execution and delivery of this Agreement and each Ancillary Document to which the Company is or is required to be a party and the consummation
of the Transactions (i) have been duly and validly authorized by the Company Board and, where applicable, its shareholders, in accordance with the Company’s Organizational Documents, any applicable Law or any Contract to which the
Company or any of its shareholders is a party or by which it or its securities are bound and (ii) no other corporate proceedings, other than as set forth elsewhere in this Agreement, on the part of the Company are necessary to
authorize the execution and delivery of this Agreement and each Ancillary Document to which it is a party or to consummate the Transactions except for obtaining Required Company Shareholder Approval.
(b) The
Company Board (acting upon the unanimous recommendation of the Company Special Committee) has by resolutions duly adopted at a meeting duly called and held, as of the date of this Agreement (i) determined that this Agreement, the
Merger and the other Transactions are advisable, fair to, and in the best interests of, the Company Shareholders, (ii) approved, among other things, this Agreement and the Ancillary Documents to which it is a party and the
Transactions, on the terms and subject to the conditions of this Agreement and in accordance with applicable Law and (iii) resolved to recommend that the Company Shareholders vote in favor of the Transactions. The Company
Shareholders are the only Company Securityholders entitled to vote on the Company Resolutions. Except for the Required Company Shareholder Approval, no additional approval or vote of any holders of voting or other equity
interests of the Company would then be necessary to approve and adopt this Agreement and the Ancillary Documents and approve the Transactions.
(c) This
Agreement has been, and each Ancillary Document to which the Company is a party shall be, when delivered, duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this
Agreement and any such Ancillary Document by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to the Enforceability Exceptions.
7.3 Governmental Approvals. Except as described in Section 7.3 of the Company Disclosure Schedules, no Consent of or with any
Governmental Authority on the part of the Company is required to be obtained or made in connection with the execution, delivery or performance by the Company of this Agreement each Ancillary Document to which it is a party or the
consummation by the Company of the Transactions, other than (a) such filings and approvals as expressly contemplated by this Agreement, including the filing of the Merger Certificates and those necessary for the Required Regulatory
Approvals, (b) any filings and approvals required with the SEC, Nasdaq, Nasdaq Sweden and other applicable securities regulatory authorities with respect to the Transactions, (c) applicable requirements, if any, of the Securities Act,
the Exchange Act, or any state “blue sky” securities Laws, and the rules and regulations thereunder, (d) a post-closing notification pursuant to the Investment Canada Act, and (e) where the failure to obtain or make such Consents or
to make such filings or notifications, would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
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7.4 Non-Contravention. Except as otherwise described in Section 7.4 of the Company Disclosure Schedules, the execution and delivery
by the Company of this Agreement and each Ancillary Document to which it is a party, the consummation by the Company of the Transactions, and compliance by the Company with any of the provisions hereof and thereof, will not (a)
contravene or conflict with or violate any provision of the Company’s Organizational Documents, (b) contravene or conflict with or constitute a violation of any provisions of Law or Order binding upon or applicable to the Company or
(c) subject to obtaining the Consents from Governmental Authorities referred to in Section 7.3 hereof, and the waiting periods referred to therein having expired, and any
condition precedent to such Consent or waiver having been satisfied, conflict with or violate in any material respect any Law, Order or Consent applicable to the Company, or any of its properties or assets, except for violations that
would not prevent or delay the consummation of the Transactions, or (d)(i) violate, conflict with or result in a breach of, (ii) result in a default (or an event which, with notice or lapse of time or both, would constitute a material
default) under, (iii) give rise to any right of termination, cancellation or acceleration under, (iv) give rise to any obligation to make material payments or provide material compensation under, (v) result in the creation of any Lien
(other than Permitted Liens) upon any of the properties or assets of the Company under, (vi) give rise to any obligation to obtain any material third party Consent or provide any notice to any Person or (vii) give any Person the right
to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any
of the terms, conditions or provisions of any Company Material Contract except, in each case, where such conflict, violation, breach, default, termination, cancellation, modification, acceleration, obligation, creation, or default
would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
7.5 Capitalization.
(a) As
of the date hereof, the authorized capital stock of the Company consists of (i) 500,000,000 shares of Class A common stock, par value $0.0001 per share, of which 294,948,688 shares are issued and outstanding as of the date hereof,
and (ii) 50,000,000 shares of preferred stock, par value $0.0001 per share, of which none are issued and outstanding as of the date hereof. All outstanding shares of Company Common Stock are duly authorized, validly issued, fully
paid and non-assessable and are not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the Delaware General
Corporation Law, the Company’s Organizational Documents or any Contract to which the Company is a party or by which it or its securities are bound. The Company does not hold any shares of Company Common Stock or other equity
interests of the Company in its treasury. None of the outstanding Company Securities have been issued in violation of any applicable securities Law.
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(b) Except
as set forth on Section 7.5(b) of the Company Disclosure Schedules, there are no outstanding or authorized options, warrants, puts, calls, restricted stock, restricted
stock units, phantom stock, profit participation rights, equity appreciation rights, phantom equity rights, other equity or equity‑based awards or other similar rights with respect to the Company other than the Company Equity
Incentive Plans.
(c) Section 7.5(c) of the Company Disclosure Schedules contains a complete and correct list, as of the date hereof, of (i) the name of the holder of each such Company Warrant,
(ii) the number of Company Common Shares underlying each such Company Warrant, (iii) the date on which each such Company Warrant was granted, (iv) the exercise price of each Company Warrant and (v) the expiration date of each
Company Warrant.
(d) Other
than as set forth on Section 7.5(b), Section 7.5(c) and Section
7.5(d) of the Company Disclosure Schedules, as of the date hereof, there are no other equity or voting interests in, or any Company Convertible Securities, or preemptive rights or other outstanding rights, options,
warrants, subscriptions, puts, calls, restricted stock, restricted stock units, phantom stock, stock appreciation, profit participation, conversion rights or similar equity or equity-based rights, interests, agreements or
commitments of any rights of first refusal or first offer, nor are there any Contracts, commitments, arrangements or restrictions to which the Company or, to the Knowledge of the Company, any of its shareholders is a party or
bound relating to any equity securities of the Company, whether or not outstanding.
(e) Except
with respect to the Company Support & Lock-Up Agreement, there are no voting trusts, proxies, shareholder agreements or any other agreements or understandings with respect to the voting of the Company’s equity interests.
Except as set forth in the Company’s Certificate of Incorporation or as expressly set forth in this Agreement, there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any equity
interests or securities of the Company, nor has the Company granted any registration rights to any Person with respect to the Company’s equity securities. All of the Company Securities have been, and after the Domestication, shall
be granted, offered, sold and issued in compliance with all applicable securities Laws.
(f) No
equity interests of the Company are issuable, and no rights in connection with any interests, warrants, rights, options or other securities of the Company accelerate or otherwise become triggered (whether as to vesting,
exercisability, convertibility or otherwise) as a result of the Transactions.
(g) Except
as disclosed in the Company Financial Statements, the Company has not declared or paid any distribution or dividend in respect of its equity interests and has not repurchased, redeemed or otherwise acquired any equity interests of
the Company, and the Company Board has not authorized any of the foregoing.
7.6 Subsidiaries.
(a) Section 7.6(a) of the Company Disclosure Schedules sets forth a true and complete list of the Subsidiaries of the Company, listing for each Subsidiary its name, the
jurisdiction of its formation or organization (as applicable) and its parent company (if wholly-owned) or its owners (if not-wholly owned). Except as set forth on Section 7.6(a)
of the Company Disclosure Schedules, all of the outstanding voting or other equity securities, as applicable, of each Subsidiary of the Company are duly authorized, validly issued, free of preemptive rights, restrictions on
transfer (other than restrictions under applicable federal, state and other securities Laws) and, if applicable, fully paid and non-assessable, and are owned by the Company, whether directly or indirectly, free and clear of all
Liens (other than Permitted Liens).
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(b) Except
as set forth on Section 7.6(b) of the Company Disclosure Schedules, there are no options, warrants, convertible securities, stock appreciation, phantom stock,
stock-based performance unit, profit participation, restricted stock, restricted stock unit, other equity-based compensation award or similar rights with respect to any Subsidiary of the Company and no rights, exchangeable
securities, securities, “phantom” rights, appreciation rights, performance units, commitments or other agreements obligating any Subsidiary of the Company to issue or sell, or cause to be issued or sold, any equity securities of,
or any other interest in, any Subsidiary of the Company, including any security convertible or exercisable into equity securities of any Subsidiary of the Company. There are no Contracts to which any Subsidiary of the Company is a
party that require such Subsidiary of the Company to repurchase, redeem or otherwise acquire any equity interests or securities convertible into or exchangeable for such equity securities or to make any investment in any other
Person.
(c) The
Company is not a participant in any joint venture, partnership or similar arrangement, except as set forth on Section 7.6(c) of the Company Disclosure Schedules.
(d) There
are no outstanding contractual obligations of the Company to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.
7.7 Financial Statements.
(a) The
Company SEC Documents reflect the comparative audited consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2025 and the related comparative audited consolidated statements of comprehensive loss, cash
flows and members’ equity, together with all related notes and schedules thereto, accompanied by the reports thereon of the Company’s independent auditor (such financial statements, the “Company Financial Statements”).
(b) Except
as set forth on Section 7.7(b) of the Company Disclosure Schedules, the Company Financial Statements (i) have been prepared from the books and records of the Company and
its Subsidiaries or their respective predecessors; (ii) shall have been prepared in accordance with GAAP, applied on a consistent basis throughout the periods involved, except as may be indicated in the notes thereto and subject,
in the case of the unaudited Company Financial Statements, to the absence of footnotes and year-end adjustments; and (iii) fairly present, in all material respects, the consolidated financial position of the Company and its
Subsidiaries as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended (subject, in the case of the unaudited Company Financial Statements, to the absence of footnotes and
year-end adjustments, none of which would be expected to be material individually or in the aggregate).
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(c) The
books of account and other financial records of the Company and its Subsidiaries have been kept accurately in all material respects in the ordinary course of business, and the transactions entered therein represent bona fide
transactions.
(d) The
Company and its Subsidiaries have devised and maintained a system of internal accounting policies and controls sufficient to provide reasonable assurances that (i) transactions are executed in all material respects in accordance
with management’s authorization; (ii) the transactions are recorded as necessary to permit the preparation of financial statements in conformity GAAP and to maintain accountability for assets; and (iii) the amount recorded for
assets on the books and records of the Company and each of its Subsidiaries is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference (collectively, “Company Internal Controls”).
(e) The
Company has not identified and has not received written notice from an independent auditor of (i) any significant deficiency or material weakness in the system of Company Internal Controls utilized by the Company or any of its
Subsidiaries; (ii) any fraud that involves the Company’s or any of its Subsidiaries’ management or other employees who have a role in the preparation of financial statements or the Company Internal Controls utilized by the Company
or any of its Subsidiaries; or (iii) any claim or allegation regarding any of the foregoing. There are no significant deficiencies or material weaknesses in the design or operation of the Company Internal Controls over financial
reporting that would reasonably be expected to materially and adversely affect the Company’s, or any of its Subsidiaries’, ability to record, process, summarize and report financial information.
(f) Except
as set forth on Section 7.7(f) of the Company Disclosure Schedules or to the extent reflected or reserved against in the Company Financial Statements or as incurred in
connection with this Agreement, neither the Company nor any of its Subsidiaries has incurred any Liabilities or obligations of the type required to be reflected on a balance sheet in accordance with GAAP with respect to the
Company Financial Statements that are not adequately reflected or reserved on or provided for in the Company Financial Statements other than (i) Liabilities of the type required to be reflected on a balance sheet in accordance
with GAAP, as applicable, that have been incurred since the Latest Balance Sheet Date in the ordinary course of business or (ii) Liabilities that are not, individually or in the aggregate, material in amount or (iii) Liabilities
incurred in connection or as permitted by this Agreement, the Ancillary Documents or the Transactions. All debts and Liabilities, fixed or contingent, which should be included under GAAP on a balance sheet are included in all
material respects in the Company Financial Statements as of the date of such Company Financial Statements. The Company has no off-balance sheet arrangements.
7.8 Absence of Certain Changes. Except as set forth on Section 7.8 of the Company Disclosure Schedules, since the Latest Balance
Sheet Date, (a) the Company and each of its Subsidiaries have conducted their respective business in the ordinary course and consistent with past practice in all material respects and (b) neither the Company nor any of its
Subsidiaries has taken any action that, if taken after the date of this Agreement and prior to the Closing, would require the consent of Southern and DevvStream pursuant to Section 8.2.
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7.9 Securities Laws. The issued and outstanding shares of Company Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq. The Company
Common Stock is not listed for trading on any other securities exchange. Except as set forth on Section 7.9 of the Company Disclosure Schedules, the Company is not in
default of any material requirements of any securities Laws or the rules and policies of Nasdaq or Nasdaq Sweden (including applicable continued listing requirements of such shares of Company Common Stock and corporate governance
rules), and the Company has not received any written deficiency notice from Nasdaq or Nasdaq Sweden relating to the continued listing requirements of such shares of Company Common Stock.
7.10 Compliance with Laws and Carbon Standards. Except as set forth on Section 7.10 of the Company Disclosure Schedules, neither the
Company nor any of its Subsidiaries is, and since its incorporation has ever been, in material conflict or material non-compliance with, or in material default or violation of any applicable Laws or applicable Carbon Standards. Since
their respective formation, neither the Company nor any of its Subsidiaries, (i) has received any written or, to the Knowledge of the Company or any of its Subsidiaries, oral notice of any material conflict or non-compliance with, or
material default or violation of, any applicable Laws by which it or any of its respective properties, assets, employees or other individual service providers (solely in such individuals’ capacity as service providers to the Company),
business, products or operations are or were bound or affected, (ii) has been subjected to any investigation by a Governmental Authority regarding any actual or alleged violation of or failure on the part of the Company or any of its
Subsidiaries to comply with any applicable Law, (iii) has had claims filed against it or any of its Subsidiaries with (A) any Governmental Authority alleging any failure by the Company or any of its Subsidiaries to comply with
applicable Law or (B) any Registry alleging any failure with respect to the Carbon Credits transacted by the Company or any of its Subsidiaries to comply with applicable Carbon Standards, (iv) has not had its access or Registry
Account suspended in respect of any relevant Registry and (v) has not made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged act or omission arising under or relating to any
noncompliance with any applicable Law, in the case of clauses (i) through (iii), except as would not, or would not reasonably be expected to, be material to the Company or any of its Subsidiaries.
7.11 Company Permits and Registry Accounts. The Company and its Subsidiaries hold all material licenses and Permits necessary to lawfully own, lease and conduct in all material respects their
respective business as presently conducted, including necessary Registry Accounts on any relevant Registry, and to own, lease and operate their respective assets and properties (collectively, the “Company Permits”). All the Company Permits and Registry Accounts are in full force and effect and not subject to, or, to the Knowledge of the Company, threatened to be subject to, any revocation or
modification Proceeding, or any suspension or termination, as a result of, or in connection with, the consummation of the Transactions, and the Company and its Subsidiaries are conducting business in compliance in all material
respects with the Company Permits, any Carbon Standard under which any of the Carbon Credits that are transacted by DevvStream or its Subsidiaries are certified, and the requirements of each relevant Registry. Neither the Company nor
its Subsidiaries is in violation in any material respect of the terms of the Company Permits, and no Proceeding is pending or, to the Knowledge of the Company or any of its Subsidiaries, threatened, to suspend, revoke, withdraw,
modify or limit any such Company Permit in a manner that has had or would reasonably be expected to have a material impact on the ability of the Company or any of its Subsidiaries, as applicable, to use such Company Permit or conduct
its business, as applicable.
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7.12 Carbon Credits. Neither the Company nor any of its Subsidiaries have, as of the date hereof, created any security interest or encumbrance in any Carbon Credits that are presently owned, or
in the future will be owned, by the Company or such Subsidiary, in favor of any third party.
7.13 Litigation. Except as set forth on Section 7.13 of the Company Disclosure Schedules, since the Company’s incorporation, there
have been, and there are, no Actions or Orders of any nature currently pending or, to the Company’s Knowledge, threatened against the Company or any of its Subsidiaries, and no such Action or Order has been brought against the Company
or any of its Subsidiaries, or any of their respective current or former directors, officers or securityholders, business, equity securities, or assets, or employees or other individual service providers in their capacities as such
that would, individually or in the aggregate, be material to the Company or any of its Subsidiaries, taken as a whole.
7.14 Material Contracts.
(a) Section 7.14(a) of the Company Disclosure Schedules sets forth a true, correct and complete list of the Company Material Contracts, as of the date hereof, a true, correct and
complete copy (including written summaries of oral Contracts) of which, in each case, has been made available to Southern and DevvStream. For purposes of this Agreement, “Company
Material Contract” means any contract, together with each Company Benefit Plan that is a Contract, to which the Company is a party or by which the Company, any of its Subsidiaries, or any of its properties or assets
are bound or affected that:
(i) contains covenants that limit or restrict the ability of the Company or any of its Subsidiaries (A) to compete in any line of business or with any Person or in any geographic area or to sell, receive or provide
any service or product or solicit any Person, including any non-competition covenants, non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or similar provision with respect to
any Person or (B) to purchase or acquire an interest in any other Person;
(ii) involves any joint venture, partnership or similar agreement;
(iii) relates to the voting or control of the equity interests of the Company or any of its Subsidiaries or the election of directors of the Company or any of its Subsidiaries (other than the Organizational Documents
of the Company and any of its Subsidiaries);
(iv) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of the Company having an outstanding principal amount in excess of $250,000;
(v) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $300,000 or shares or other equity interests of the Company or another
Person;
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(vi) relates to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity or its business or material assets or the sale of the Company, its
business or material assets;
(vii) by its terms, individually or with all related Contracts, is reasonably expected to call for aggregate payments or receipts by the Company or any of its Subsidiaries under such Contract or Contracts of at least
$500,000 per year or $5,000,000 in the aggregate;
(viii) is any carbon streaming agreement;
(ix) is any strategic partnership agreement;
(x) is with (A) any Governmental Authority or (B) any Company Related Person;
(xi) is a settlement, conciliation or similar agreement pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement;
(xii) provides for any severance, retention, transaction or change in control bonus or equity, equity-based or phantom equity arrangement;
(xiii) obligates the Company or any of its Subsidiaries to provide continuing indemnification or a guarantee of obligations that would be expected to result in payments to a third party after the date hereof in excess
of $300,000;
(xiv) provides for the employment or engagement of any director, officer, employee or individual service provider, excluding offer letters providing for at-will employment that can be terminated without any
post-termination Liabilities;
(xv) is a Labor Agreement;
(xvi) obligates the Company or any of its Subsidiaries to make any capital commitment or expenditure in excess of $300,000 (including pursuant to any joint venture);
(xvii) (A) entered into with any third-party broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising partner or service
provider and (B) are material to the business of the Company or any of its Subsidiaries;
(xviii) provides for any guaranty, direct or indirect, of any obligation of a third party (other than the Company);
(xix) constitutes a lease or master lease of personal property reasonably likely to result in annual payments of $125,000 or more in a 12-month period;
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(xx) constitutes any contract providing for (A) the grant of any preferential rights of first offer or first refusal to purchase or lease any material asset of the Company or any of its Subsidiaries or (B) any
exclusive right to sell or distribute, or otherwise relating to the sale or distribution of, any product or service of the Company or any of its Subsidiaries;
(xxi) establishes any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture,
partnership or limited liability company;
(xxii) constitutes any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any Person other than any loan or capital contribution
to, or investment in, (A) the Company or one of its wholly owned Subsidiaries, (B) any Person (other than an officer, director or employee of the Company or any of its Subsidiaries) that is less than $3,000,000 to such Person or
(C) any officer, director or employee of the Company or any of its Subsidiaries that is less than $250,000 to such person;
(xxiii) constitutes any obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, all or substantially all of the assets or stock of other persons;
(xxiv) constitutes any Company IP Agreements (other than agreements for Off-the-Shelf Software);
(xxv) provides any third party a power of attorney;
(xxvi) relates to the future disposition or acquisition by the Company or any of its Subsidiaries of (A) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or
otherwise) or (B) any material assets or properties, except for any agreement related to the Transactions; or
(xxvii) involves the payment of any earnout or similar contingent payment on or after the date of this Agreement.
(b) With
respect to the Company Material Contracts: (i) each Company Material Contract is valid and binding and enforceable in all respects against the Company and, to the Knowledge of the Company, each other party thereto, and is in full
force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions); (ii) the consummation of the Transactions will not affect the validity or enforceability of the Company Material
Contracts; (iii) neither the Company nor any of its Subsidiaries is in breach or default in any material respect, and to the Knowledge of the Company, no condition or event has occurred that with the passage of time or giving of
notice or both would constitute a material breach or default by the Company or any of its Subsidiaries, or permit termination or acceleration by the other party thereto, under such Company Material Contract; (iv) to the Knowledge
of the Company, no other party to such Company Material Contract is in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a material
breach or default by such other party, or permit termination or acceleration by the Company or any of its Subsidiaries, under such Company Material Contract; (v) the Company and its Subsidiaries have received neither written nor,
to the Company’s Knowledge, oral notice of an intention by any party to any such Company Material Contract that provides for a continuing obligation by any party thereto to terminate such Company Material Contract or amend the
terms thereof, other than modifications in the ordinary course of business that, individually or in aggregate, are not reasonably expected to adversely affect the Company or any of its Subsidiaries in any material respect; and
(vi) neither the Company nor any of its Subsidiaries has waived any of their respective material rights under any such Company Material Contract.
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7.15 Intellectual Property.
(a) Section 7.15(a) of the Company Disclosure Schedules sets forth: (i) all registered Patents, Trademarks, Copyrights and Internet Assets and applications owned by the Company
or otherwise used or held for use by the Company or any of its Subsidiaries in which the Company or any of its Subsidiaries is the owner, applicant or assignee (“Company Registered
IP”); and (ii) all material unregistered Intellectual Property, including proprietary Software, owned or purported to be owned by the Company or any of its Subsidiaries (for material Trade Secrets, only a general
description shall be disclosed).
(b) Section 7.15(b) of the Company Disclosure Schedules sets forth all material Intellectual Property licenses, sublicenses and other agreements or permissions (“Company IP Licenses”) (other than “shrink wrap,” “click wrap,” and “off the shelf” software agreements and Off-the-Shelf Software which are not required to be listed,
although such licenses are “Company IP Licenses” as that term is used herein), under which the Company or any of its Subsidiaries is a licensee or otherwise is authorized
to use or practice or have rights to any Intellectual Property of any Person that is (i) incorporated into, or used in the authorship, invention, development, delivery, hosting or distribution of, the Company Products; or (ii)
used or held for use by the Company in the conduct of its business.
(c) The
Company and its Subsidiaries either own or have valid and enforceable rights under a Company IP License to use all Intellectual Property that is necessary and sufficient for, or used or held for use by the Company in, the conduct
of its business, in each case free and clear of any Liens (other than Permitted Liens). All of the Company Registered IP is in full force and effect, subsisting, valid and enforceable. The Company or its Subsidiaries, as
applicable, (i) is the sole and exclusive owner of all right, title and interest in and to the Owned IP, in each case free and clear of any Liens (other than Permitted Liens); and (ii) has a valid and enforceable license or other
rights to use all Licensed IP. Neither the Company nor any of its Subsidiaries has dedicated to the public or otherwise allowed to fall into the public domain any material Owned IP.
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(d) The
Company and its Subsidiaries have provided Southern and DevvStream with true and complete copies of all material Company IP Agreements, including all modifications, amendments and supplements thereto and waivers thereunder.
Neither the Company, any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is, or is alleged to be, in breach of or default under, or has provided or received any notice of breach of, default under,
or intention to terminate (including by non-renewal), any Company IP Agreement. The Company or its Subsidiaries, as applicable, have entered into binding, valid and enforceable, written Contracts with each current and former
employee and independent contractor who is or was involved in or has contributed to the invention, creation, or development of any Intellectual Property during the course of employment or engagement with the Company or any of its
Subsidiaries, as applicable, whereby such employee or independent contractor (i) acknowledges the Company’s exclusive ownership of all Intellectual Property invented, created, or developed by such employee or independent
contractor within the scope of his or her employment or engagement with the Company or any of its Subsidiaries, as applicable; (ii) grants to the Company or any of its Subsidiaries, as applicable, a present, irrevocable assignment
of any ownership interest such employee or independent contractor may have in or to such Intellectual Property, to the extent such Intellectual Property does not constitute a “work made for hire” under applicable Law; and (iii)
irrevocably waives any right or interest, including any moral rights, regarding any such Intellectual Property, to the extent permitted by applicable Law. All material assignments and other instruments necessary to establish,
record and perfect the Company’s ownership interest in the Company Registered IP have been validly executed, delivered and filed with the relevant Governmental Authorities and authorized registrars. Neither the execution, delivery
or performance of this Agreement, nor the consummation of the Transactions, will result in the loss or impairment of, or require the consent of any other Person in respect of, the Company’s right to own or use any Intellectual
Property.
(e) The
Company IP Licenses include all of the material licenses, sublicenses and other agreements or permissions necessary to operate the Company and its Subsidiaries as presently conducted.
(f) No
Action is pending or, to the Company’s Knowledge, threatened against the Company or any of its Subsidiaries that challenges the validity, enforceability, ownership or right to use, sell, license or sublicense, or that otherwise
relates to, any Intellectual Property currently licensed, used or held for use by the Company or any of its Subsidiaries, nor, to the Knowledge of the Company, is there any reasonable basis for any such Action. Since
incorporation, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, notice or claim asserting or suggesting that any infringement, misappropriation, violation, dilution or
unauthorized use of the Intellectual Property of any other Person is or may be occurring or has or may have occurred, as a consequence of the business activities of the Company or any of its Subsidiaries, nor to the Knowledge of
the Company is there any reasonable basis therefor. There are no Orders to which the Company or any of its Subsidiaries is a party or its otherwise bound that (i) restrict the rights of the Company or any of its Subsidiaries to
use, transfer, license or enforce any Intellectual Property owned by the Company, (ii) restrict the conduct of the business of the Company or any of its Subsidiaries in order to accommodate a third Person’s Intellectual Property
or (iii) grant any third Person any right with respect to any Intellectual Property owned by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is currently infringing, or has, since
incorporation, infringed, misappropriated or violated any Intellectual Property of any other Person in connection with the ownership, use or license of any Intellectual Property owned or purported to be owned by the Company or any
of its Subsidiaries or, to the Knowledge of the Company, otherwise in connection with the conduct of the respective businesses of the Company and its Subsidiaries. To the Company’s Knowledge, no third party is currently, or in the
past five (5) years has been, infringing upon, misappropriating or otherwise violating any Intellectual Property owned, licensed by, licensed to or otherwise used or held for use by the Company or any of its Subsidiaries.
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(g) No
funding from any Governmental Authority or facilities of a university, college, other educational institution or non-profit organization was used in the development of the Owned IP, and no Governmental Authority, university,
college, other educational institution or non-profit organization has a claim or right to claim title to any Owned IP.
(h)
(i) The Company and its Subsidiaries have taken steps consistent with generally accepted industry standards, and in any event no less than all commercially reasonable steps, to safeguard and maintain the secrecy
and confidentiality of all Trade Secrets included in the Owned IP.
(ii) Neither the Company nor any of its Subsidiaries has authorized the disclosure of any Trade Secret included in the Owned IP, nor has any such Trade Secret been disclosed, in each case other than pursuant to a
written and enforceable non-disclosure agreement.
(iii) There has been no misappropriation of any Trade Secret included in the Owned IP or breach of any obligations of confidentiality with respect to such Trade Secrets.
(i) Neither
the execution, delivery nor performance of this Agreement or any other agreements referred to in this Agreement nor the consummation of any of the Transactions will, with or without notice or lapse of time, directly result in:
(i) a loss of or an Lien on any Owned IP; (ii) a breach of or default under, or right to terminate or suspend performance of, any Company IP Agreement; (iii) the release, disclosure or delivery of any Trade Secrets within the
Owned IP by or to any escrow agent or other Person; (iv) the grant, assignment or transfer to any other Person of any license or other right or interest under, to or in any Owned IP. The Company will own all right, title and
interest in and to, or otherwise have a license to, all Owned IP and Licensed IP on identical terms and conditions as the Company enjoyed immediately prior to the Closing.
(j) The
Source Code for Software within the Owned IP and the Source Code for Software included in all Company Products (A) has at all times been maintained in confidence, and has been disclosed only to employees and consultants having a
“need to know” the contents thereof in connection with the performance of their duties and who are bound by confidentiality obligations of customary scope with respect to Source Code; and (B) has not been delivered, licensed or
made available to any escrow agent or other Person, and neither the Company nor any of its Subsidiaries has any duty or obligation to deliver, license or make available such Source Code to any escrow agent or other Person.
(k) Neither
the Company nor any of its Subsidiaries has (i) used any Open Source Software in such a way that (A) obligates the Company to make any Software within the Owned IP available free of charge, available in source code form, or
reverse engineerable, (B) grants or purports to grant to any third Person any rights or immunities under any Intellectual Property within the Owned IP, or (C) requires any Company Products or any portion thereof, to be subject to
a Copyleft License; or (ii) contributed any Software within the Owned IP to an open source project or made any such Software available to any other Person under an open source license.
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(l) The
Company Products do not contain any malicious or surreptitious code or device, such as a virus, worm, time or logic bomb, disabling device, Trojan horse or other malicious or surreptitious code designed to: (i) disrupt or damage
any licensee’s use of the Company Products or related computer systems; (ii) erase, destroy or corrupt any licensee’s files or data; or (iii) bypass any technical security measure, or masquerade as compliant, so as to obtain
access to any of licensee’s hardware or software in contravention of such technical security measures.
(m) The
Company and its Subsidiaries own or have a valid license in all of the Company Systems necessary to operate the business of the Company and its Subsidiaries as currently conducted. The Company and its Subsidiaries have taken
commercially reasonable measures to protect and maintain the security of the Company Systems and all information stored or contained therein from any unauthorized use, access, interruption or modification by any Person. The
Company Systems (i) operate and perform in all material respects in accordance with their documentation and as required by the business of the Company and its Subsidiaries as currently conducted; (ii) have not suffered any
material persistent substandard performance, breakdown or failure since the Company’s incorporation; (iii) are free from any material defects; (iv) do not contain any virus, Software or hardware component designed to permit
unauthorized access or to disable or otherwise harm or disable any System whether automatically with the passage of time or under the positive control of a Person; (v) are in good repair and operating condition and are adequate
and suitable (including with respect to working condition, license seats, performance and capacity) for the purposes for which they are currently being used; and (vi) are sufficient to operate the business of the Company and its
Subsidiaries after the Closing in substantially the same manner as conducted in the twelve (12) months prior to the Closing and constitute all of the Systems reasonably necessary to conduct the business of the Company and its
Subsidiaries as currently conducted.
7.16 Taxes and Returns.
(a) Each
of the Company and each of its Subsidiaries have timely filed, or caused to be timely filed, all material Tax Returns required to be filed by it (taking into account all available extensions properly obtained), which Tax Returns
are true, accurate, correct and complete in all material respects, and has paid, collected or withheld, or caused to be paid, collected or withheld, all material Taxes required to be paid, collected or withheld. The Company and
each of its Subsidiaries have complied in all material respects with all applicable Laws relating to Taxes.
(b) There
is no Action currently pending or threatened in writing against the Company or any of its Subsidiaries by a Governmental Authority in a jurisdiction where the Company or such Subsidiary does not file Tax Returns that it is or may
be subject to taxation by that jurisdiction.
(c) There
are no claims, assessments, audits, examinations, investigations or other Actions by any Taxing Authority in progress or pending against the Company or any of its Subsidiaries in respect of any Tax, and neither the Company nor any
of its Subsidiaries has been notified in writing, or to the Knowledge of the Company, orally, of any proposed Tax claims or assessments against it (other than, in each case, claims or assessments for which adequate reserves in the
Company Financial Statements have been established in accordance with GAAP for Company Financial Statements delivered as of the date hereof) or that any such audit, examination, investigation or other Action is contemplated.
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(d) Neither
the Company nor any of its Subsidiaries has any liability for Taxes of any Person (other than the Company and its Subsidiaries) (i) under any Tax indemnity, Tax sharing or Tax allocation agreement or any other contractual
obligation (excluding for this purpose, agreements entered into in the ordinary course of business the primary purpose of which is not related to Taxes, such as leases, licenses or credit agreements), (ii) arising from the
application of U.S. Treasury Regulations Section 1.1502-6 or any analogous provision of state, local or non-U.S. Law or (iii) as a transferee or successor, by Contract (excluding for this purpose, Contracts entered into in the
ordinary course of business the primary purpose of which is not related to Taxes, such as leases, licenses or credit agreements) or by operation of Law.
(e) There
are no Liens with respect to any Taxes upon the Company’s or any of its Subsidiaries’ assets, other than Liens described in clause (a) of the definition of Permitted Liens.
(f) The
Company and each of its Subsidiaries have collected or withheld all material Taxes currently required to be collected or withheld by them, and all such Taxes have been paid to the appropriate Governmental Authorities or set aside
in appropriate accounts for future payment when due.
(g) Neither
the Company nor any of its Subsidiaries has any outstanding waivers or extensions of any applicable statute of limitations to assess any material amount of Taxes. There are no outstanding requests by the Company of any of its
Subsidiaries for any extension of time within which to file any Tax Return or within which to pay any Taxes shown to be due on any Tax Return.
(h) Neither
the Company nor any of its Subsidiaries has made any change in accounting methods (except as required by a change in Law) or received a ruling from, or signed an agreement with, any Taxing Authority that would reasonably be
expected to have a material impact on its Taxes following the Closing.
(i) Neither
the Company nor any of its Subsidiaries is, or has ever been, a member of an “affiliated group” as defined in Section 1504(a) of the Code or any affiliated, combined, unitary, consolidated or similar group under state, local or
non-U.S. Law (other than a group all of the members of which consisted of the Company and its Subsidiaries).
(j) Neither
the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying (or intended
to qualify) in whole or in part for tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) or Section 361 of the Code.
(k) The
Company is, and since its inception has been, properly characterized as a corporation for U.S. federal income tax purposes. The Company is treated as a U.S. domestic corporation for U.S. federal income tax purposes pursuant to
Section 7874(b) of the Code. Each Subsidiary of the Company is, and since its inception has been, properly treated for U.S. federal income tax purposes in the manner set forth in Section
7.16(k) of the Company Disclosure Schedules.
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(l) Neither
the Company nor any of its Subsidiaries (nor any of the Company and its Affiliates) will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period
(or portion thereof) ending after the Closing Date as a result of any of the following that occurred or existed on or prior to the Closing with respect to the Company or any of its Subsidiaries (in each case where there is a
reference to the Code or Treasury Regulations, including any corresponding or similar provision of state, local or non-U.S. legal or regulatory requirements): (i) an installment sale or open transaction, (ii) a prepaid amount
received or deferred revenue recognized outside the ordinary course of business, (iii) an intercompany item under Treasury Regulations Section 1.1502-13 or an excess loss account under Treasury Regulations Section 1.1502-19, or
(iv) a change in or use of an improper accounting method, including pursuant to Section 481 of the Code.
(m) No
“closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. legal or regulatory requirements), private letter rulings, technical advice memoranda or similar
agreements or rulings have been requested, entered into or issued by any Taxing Authority with respect to the Company or any of its Subsidiaries which agreement or ruling would be effective after the Closing Date (or, for the
avoidance of doubt, that would require the Company or any of its Subsidiaries (or the Company or any of its Affiliates) to include any material item of income in, or exclude any material item of deduction from, taxable income for
any taxable period (or portion thereof) ending after the Closing Date).
(n) Neither
the Company nor any of its Subsidiaries: (i) has consented to extend the time in which any Tax may be assessed or collected by any Taxing Authority (other than ordinary course extensions of time to file Tax Returns), which
extension is still in effect; or (ii) has entered into or been a party to any “listed transaction” within the meaning of Section 6707A(c)(2) of the Code and Treasury Regulations Section 1.6011-4(b)(2).
(o) Neither
the Company nor any of its Subsidiaries has taken or agreed to take any action, nor does it intend to or plan to take any action, or have any knowledge of any fact or circumstance that could reasonably be expected to prevent the
Transactions from qualifying for the Intended US Tax Treatment (with the exception of any actions specifically contemplated by this Agreement).
7.17 Real Property.
(a) The
leases set forth on Section 7.17(a) of the Company Disclosure Schedule (the “Company Leases”) are the only
Contracts pursuant to which the Company leases any real property. Neither the Company nor any of its Subsidiaries is a party to, or under any agreement to become a party to, any lease with respect to real property other than the
Company Leases, copies of which have been provided to Southern and DevvStream. Each Company Lease is in good standing, creates a good and valid leasehold estate in the leased properties thereby demised and is in full force and
effect without amendment, except as set forth on Section 7.17(a) of the Company Disclosure Schedules. With respect to each Company Lease, (a) such Company Lease (or a
notice in respect of such Company Lease) has been properly registered in the appropriate land registry office, (b) all rents and additional rents have been paid, (c) no waiver, indulgence or postponement of the lessee’s
obligations has been granted by the lessor, (d) there exists no event of default or event, occurrence, condition or act (including the purchase of the Company Securities) which, with the giving of notice, the lapse of time or the
happening of any other event or condition, would become a default under the Company Lease and (e) to the knowledge of the Company, all of the covenants to be performed by any other party under such Company Lease have been fully
performed.
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(b) Each
of the leased properties is adequate and suitable for the purposes for which it is presently being used and the Company or its Subsidiaries, as applicable, has adequate rights of ingress and egress into each of the leased
properties for the operation of the business in the ordinary course. Section 7.17(b) of the Company Disclosure Schedules sets forth all of the Company Leases setting
out, in respect of each Company Lease, a description of the leased premises (by municipal address and proper legal description), the term of the Company Lease, the rental payments under the Company Lease (specifying any breakdown
of base rent and additional rents), any rights of renewal and the term thereof, and any restrictions on assignment, change of control of the Company or amalgamation.
7.18 Title to and Sufficiency of Assets. The Company and its Subsidiaries have good and marketable title to, or, in the case of leased or subleased assets, a valid leasehold interest in or right
to use, all of their respective material assets, free and clear of all Liens other than (a) Permitted Liens, (b) the rights of lessors under leasehold interests and (c) Liens set forth in the Company Financial Statements
(collectively, the “Company Assets”). The Company Assets (including Intellectual Property rights and contractual rights) of the Company and its Subsidiaries, taken as a
whole, constitute all of the material assets, rights and properties that are used in the operation of the businesses of the Company and its Subsidiaries as they are now conducted or that are used or held by the Company or any of its
Subsidiaries for use in the operation of the business of the Company or any of its Subsidiaries.
7.19 Employee Matters.
(a) The
Company is not party to, or bound by, any Labor Agreement, and has never been party to, or bound by, any such Contract. There are no unfair labor practice charges, material labor grievances, labor arbitrations, labor strikes,
slowdowns, work stoppages, boycotts, picketing, handbilling, lockouts, or other material labor disputes, or to the Company’s Knowledge threat of any of the foregoing, or, to the Company’s Knowledge, union organizing activity or
demand or petition for representation or certification, by or with respect to any of the employees of the Company, and no such activities or disputes have occurred (including any representation or certification proceedings brought
or filed with the National Labor Relations Board or any other labor relations tribunal or authority) since the Company’s incorporation. No employees of the Company are represented by any labor organization, labor or trade union,
or works council with respect to their employment with the Company. The Company has not engaged in any unfair labor practices since its incorporation. With respect to the Transactions, the Company has satisfied in all material
respects any pre-signing or, as of the Closing, pre-Closing notice, consultation or other obligations owed to its employees or their representatives under applicable Law or Labor Agreement.
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(b) The
Company is and since its incorporation has been in compliance in all material respects with all applicable Laws respecting labor, employment and employment practices, including Laws regarding terms and conditions of employment,
health and safety, wages and hours, discrimination, harassment, retaliation, whistleblowing, disability, labor relations, worker classification, Tax withholding, hours of work, payment of wages and overtime wages, pay equity,
immigration (including the completion of Forms I-9 and confirmation of visas), workers’ compensation, unemployment insurance, working conditions, equal opportunity, affirmative action, employee leave and other time off, COVID-19,
and employee terminations (including plant closures and layoffs), and has not received written or, to the Knowledge of the Company, oral notice that there is any instance of noncompliance in any of the foregoing respects. Except
as would not result in material liability to the Company, the Company (i) has since its incorporation correctly classified all current and former exempt and non-exempt employees, individual independent contractors, leased
employees, and other non-employee service providers for all applicable purposes, (ii) is not liable for any past due arrears of wages, salaries, premiums, commissions, bonuses, severance, termination payments, fees, or other
compensation due to current or former employees, independent contractors or other individual service providers of the Company since its incorporation or any fine, Tax, interest or penalty for failure or delinquency to pay the
foregoing and (iii) is not liable for any material payment to any Governmental Authority with respect to unemployment or workers’ compensation benefits, social security or other benefits, insurance, Taxes or obligations for
employees, independent contractors or other individual service providers due since the Company’s incorporation (other than routine payments to be made in the ordinary course of business and consistent with past practice). There
are no Actions pending or, to the Company’s Knowledge, threatened, and there have been no such Actions since the Company’s incorporation, by or against the Company brought by or against any applicant for employment, any current or
former employee, consultant, independent contractor or other individual service provider, any Person alleging to be a current or former employee, contractor or individual service provider, or any Governmental Authority or any
other Person relating to violations of labor or employment Laws, or making any other allegation relating to the employment of or services rendered by such Person including alleging breach of any express or implied contract of
employment or engagement, wrongful termination of employment or engagement, or alleging any other discriminatory, wrongful or tortious conduct in connection with the employment or service relationship. To the Company’s Knowledge,
(A) no employee or individual service provider intends to terminate his or her employment with or services to the Company, and (B) no current or former employee or individual service provider is in any material respect in
violation of any employment agreement, nondisclosure obligation, fiduciary duty, restrictive covenant or other obligation (I) owed to the Company or (II) owed to any third party with respect to such person’s right to be employed
or engaged by the Company.
(c) There
has not at any time since the Company’s incorporation been any, and there is no pending or, to the Knowledge of the Company, threatened, any allegation, investigation (including any internal investigation), complaint, lawsuit or
Action concerning any Misconduct with respect to any Company employee, contractor, or other service provider (and, where required, the Company has taken corrective action in response to).
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7.20 Benefit Plans.
(a) “Company Benefit Plan” means each Benefit Plan that is sponsored, maintained, contributed to or required to be contributed by the Company or any of its Subsidiaries or under
which the Company or any of its Subsidiaries has any liability or obligation (including any contingent liability or obligation).
(b) No
Company Benefit Plan is, and neither the Company nor any of its Subsidiaries sponsors, maintains or contributes to (or have any obligation to contribute to), or has any liability under or with respect to any: (i) “defined benefit
plan” (as defined in Section 3(35) of ERISA) or any plan that is or was subject to Title IV of ERISA or Section 412 or 430 of the Code, (ii) “multiemployer plan,” as defined in Section 3(37) of ERISA, (iii) “multiple employer
plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA, or (iv) “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). Neither the Company nor any of its Subsidiaries has any
Liability on account of being considered a single employer under Section 414 of the Code with any other Person. No Company Benefit Plan provides, and neither the Company nor any of its Subsidiaries has any obligation to provide,
retiree or post-employment health or life insurance or any other retiree or post-employment welfare-type benefits to any Person other than as required under Section 4980B of the Code or any similar state Law and for which the
covered Person pays the full cost of coverage.
(c) With
respect to each Company Benefit Plan: (i) such Company Benefit Plan is and has at all times been operated, maintained, funded and administered in all material respects in accordance with its terms, and applicable Laws; (ii) there
have been no “prohibited transactions” within the meaning of Section 4975 of the Code or Section 406 or 407 of ERISA that are not otherwise exempt under Section 408 of ERISA; (iii) no material Action is pending, or to the
Company’s Knowledge, threatened (other than routine claims for benefits arising in the ordinary course of administration); and (iv) all material contributions, distributions, reimbursements and premiums due through the Closing
Date have been timely made and all such amounts for any period ending on or before the Closing Date that are not yet due have been made or properly accrued on the Company Financial Statements. Neither the Company nor any of its
Subsidiaries has incurred (whether or not assessed) or is reasonably expected to incur or to be subject to, any material Tax or other penalty with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as
applicable, or under Section 4980B, 4980D or 4980H of the Code.
(d) Neither
the execution and delivery of this Agreement nor the consummation of the Transactions could (either alone or in combination with another event) (i) result in any payment or benefit, or increase in the amount of any compensation or
benefits due, to any current or former employee, officer, director or other individual service provider of the Company or any of its Subsidiaries; (ii) result in the acceleration of the time of payment or vesting, or trigger any
payment or funding of any compensation or benefits due to any current or former employee, officer, director or other individual service provider of the Company or any of its Subsidiaries; (iii) except as required under the terms
of this Agreement or by applicable Law, restrict the ability of the Company to merge, amend or terminate any material Company Benefit Plan; (iv) result in the forgiveness of any employee or service provider loan; or (v) result in
the payment of any amount (whether in cash or property or the vesting of property) that could, individually or in combination with any other such payment, constitute an “excess parachute payment” (within the meaning of Section
280G(b)(1) of the Code). No person is entitled to receive, and neither the Company nor any of its Subsidiaries has any current or contingent obligation to provide, any payment (including any tax gross-up or other payment),
indemnification, reimbursement or otherwise be made whole from the Company as a result of the imposition of any excise taxes required by any applicable Laws, including under Section 4999 or Section 409A of the Code (or any
corresponding provisions of state, local or foreign Tax law).
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(e) Each
Company Benefit Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in all respects
in operational compliance with, and is in all respects in documentary compliance with, Section 409A of the Code and all IRS guidance promulgated thereunder, and no amount under any such plan, agreement or arrangement is, has been
or could reasonably be expected to be subject to any additional Tax, interest or penalties under Section 409A of the Code.
7.21 Environmental Matters.
(a) The
Company and its Subsidiaries have, since incorporation have been, in compliance in all material respects with all applicable Environmental Laws, including obtaining, maintaining, and complying in all material respects with all
Permits required under Environmental Laws for the operation of its business and the occupation of its properties and facilities.
(b) Neither
the Company nor any of its Subsidiaries has received any Order, notice or written report from any Governmental Authority regarding any actual or alleged material violation of, or material Liability under, Environmental Laws.
(c) Neither
the Company nor any of its Subsidiaries have treated, stored, arranged for or permitted the disposal of, transported, handled, distributed, exposed any person to or Released Hazardous Materials, including on any property owned, or
operated on, by the Company or any of its Subsidiaries and no such property owned or operated on by the Company or any of its Subsidiaries is contaminated by Hazardous Materials, in each case so as to give rise to any
Environmental Liabilities of the Company.
(d) Neither
the Company nor any of its Subsidiaries is party to any Contract pursuant to which the Company or such Subsidiary provided an indemnity with respect to, or has otherwise become subject to (either by Contract or operation of Law),
any Environmental Liability of any other Person under Environmental Laws or relating to Hazardous Materials.
(e) The
Company has provided to Southern and DevvStream all environmental audits, assessments and reports and other material environmental, health or safety documents relating to the Company’s past or current properties, facilities or
operations on the Company’s properties and facilities that are in the Company and its Subsidiaries’ possession or, to the Knowledge of the Company, under its reasonable control.
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7.22 Related Person Transactions. Except as set forth on Section 7.23 of the
Company Disclosure Schedules, neither the Company nor any of its Affiliates, nor any officer, director, manager, employee, trustee or beneficiary of the Company or any of its Affiliates, nor any immediate family member of any of the
foregoing (whether directly or indirectly through an Affiliate of such Person) (each of the foregoing, a “Company Related Person”) is presently, or since January 1, 2025, has been,
a party to any transaction with the Company, including any Contract or other arrangement (a) providing for the furnishing of services by (other than as officers, directors or employees of the Company), (b) providing for the rental of real
property or Personal Property from or (c) otherwise requiring payments to (other than for services or expenses as directors, officers or employees of the Company in the ordinary course of business consistent with past practice) any Company
Related Person or any Person in which any Company Related Person has an interest as an owner, officer, manager, director, trustee or partner or in which any Company Related Person has any direct or indirect interest.
(a) A list of
all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) held by the Company, as of the date hereof, relating to the Company or its business, properties, assets, directors,
officers and employees, copies of which have previously been made available to Southern and DevvStream is set forth on Section 7.24(a) of the Company Disclosure Schedules. All
premiums due and payable under all such insurance policies have been timely paid and the Company is otherwise in material compliance with the terms of such insurance policies and each such insurance policy (i) is legal, valid, binding,
enforceable and in full force and effect and (ii) will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the Closing. Neither the Company nor any of its Subsidiaries has any
self-insurance or co-insurance programs. Since the date of the Company’s incorporation, neither the Company nor any of its Subsidiaries has received any notice from, or on behalf of, any insurance carrier relating to or involving any
adverse change or any change other than in the ordinary course of business, in the conditions of insurance, any refusal to issue an insurance policy or non-renewal of a policy.
(b) The
Company and its Subsidiaries have reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such a claim would not be reasonably likely to
be material to the Company or any of its Subsidiaries. To the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would reasonably be expected to (with or without notice or lapse of time) give
rise to or serve as a basis for the denial of any such material insurance claim. Since incorporation, neither the Company nor any of its Subsidiaries has made any claim against an insurance policy as to which the insurer is denying or
has denied coverage.
7.24 Books and Records. All of the financial books and records of the Company and its Subsidiaries are complete and accurate in all
material respects and have been maintained in the ordinary course of business consistent with past practice and in accordance with applicable Laws.
(a) Neither
the Company or any of its Subsidiaries nor any of their respective officers, directors, employees or other individual service providers, nor to the Knowledge of the Company, any agent or other third party representative acting on behalf
of the Company or any of its Subsidiaries, (a) is currently, or has been since incorporation: (i) a Sanctioned Person; (ii) engaging in any dealings or transactions with or for the benefit of any Sanctioned Person or in any Sanctioned
Country; (iii) engaging in any export, reexport, transfer or provision of any goods, software, technology, data or service without, or exceeding the scope of, any required or applicable licenses or authorizations under all applicable
Ex-Im Laws; or (iv) otherwise in violation of Trade Controls; or (b) has at any time (i) made or accepted any unlawful payment or given, received, offered, promised, or authorized or agreed to give or receive, any money, advantage or
thing of value, directly or indirectly, to or from any employee or official of any Governmental Authority or any other Person in violation of Anti-Corruption Laws; or (ii) otherwise been in violation of any Anti-Corruption Laws.
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(b) Neither
the Company nor any of its Subsidiaries has received from any Governmental Authority or any Person any notice, inquiry, or internal or external allegation; made any voluntary or involuntary disclosure to a Governmental Authority; or
conducted any internal investigation or audit concerning any actual or potential violation or wrongdoing in each case, related to Trade Controls or Anti-Corruption Laws.
(c) Neither
the Company nor any of its Subsidiaries is a “TID U.S. Business,” as such term is defined in 31 C.F.R. § 800.248.
(a) The
Company and its Subsidiaries, and to the Knowledge of the Company, their respective officers, directors, employees, agents, subcontractors, vendors and other individual service providers to whom the Company or any of its Subsidiaries,
as applicable, has given access to Personal Data, are and have been at all times, in compliance in all material respects with (i) all applicable Privacy Laws, (ii) the Company’s and its Subsidiaries’ privacy policies, (iii) all industry
and self-regulatory standards governing Personal Data, privacy, data security, and data protection to which the Company or any of its Subsidiaries are bound or to which they purport to adhere (including, as applicable, the Payment Card
Industry Data Security Standard), and (iv) the Company’s and its Subsidiaries’ contractual obligations concerning Personal Data, privacy, data protection, cybersecurity, data security and the security of the Company’s and each of its
Subsidiaries’ information technology systems, and neither the execution, delivery nor performance of this Agreement or any other agreements referred to in this Agreement nor the consummation of any of the Transactions will, with or
without notice or lapse of time, directly result in any violation of the foregoing clauses (i)–(iv) in any material respect;
(b) To the
Knowledge of the Company, neither the Company nor any of its Subsidiaries has experienced any material loss, damage or unauthorized access, use, disclosure, modification or breach of security of Personal Data maintained by or on behalf
of the Company (including, to the Knowledge of the Company, by any agent, subcontractor or vendor of the Company); and
(c) To the
Knowledge of the Company, (i) no Person, including any Governmental Authority, has made any written claim or commenced any Proceeding with respect to any violation of any Privacy Law by the Company or any of its Subsidiaries; and (ii)
the Company has not been given written notice of any criminal, civil or administrative violation of any Privacy Law, in any case including any claim or Action with respect to any loss, damage or unauthorized access, use, disclosure,
modification or breach of security, of Personal Data maintained by or on behalf of the Company or any of its Subsidiaries (including by any agent, subcontractor or vendor of the Company).
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7.27 Investment Company Act. Neither the Company nor any of its
Subsidiaries is an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company,” or required to register as an “investment company,” in each case within the meaning of the Investment
Company Act.
7.28 Finders and Brokers. Except as set forth on Section
7.29 of the Company Disclosure Schedules, neither the Company nor any of its Subsidiaries has any Liability in connection with this Agreement or the Ancillary Documents, or the Transactions, that would result in the
obligation of the Company or any of its Subsidiaries, or any of their respective Affiliates, to pay any finder’s fee, brokerage or agent’s commissions or other like payments.
7.29 Independent Investigation. The Company has conducted its own independent investigation, review and analysis of the business, results of
operations, prospects, condition (financial or otherwise) or assets of Southern and DevvStream and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents
and data of Southern and DevvStream for such purpose. The Company acknowledges and agrees that: (a) in making its decision to enter into this Agreement, the Ancillary Documents to which it is a party and to consummate the Transactions, it
has relied solely upon its own investigation and the express representations and warranties of Southern set forth in Article IV (including the related portions of the Southern
Disclosure Schedule) and DevvStream set forth in Article VI (including the related portions of the DevvStream Disclosure Schedule) and in any certificate delivered to the Company
by DevvStream or Southern, pursuant hereto; and (b) neither Southern, DevvStream nor any of their Representatives has made any representation or warranty, express or implied, as to DevvStream or Southern, this Agreement, the Transactions,
or any information or materials regarding the foregoing furnished or made available to the Company, except as expressly set forth in Article IV and Article VI (including the
related portions of the DevvStream Disclosure Schedules and Southern Disclosure Schedules) or in any certificate delivered to the Company by DevvStream or Southern pursuant hereto.
7.30 Information Supplied. None of the information supplied or to be supplied by the Company expressly for inclusion or incorporation by
reference: (a) in any current report on Form 8-K, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority or stock exchange with respect to the Transactions; (b) in the
Registration Statement; or (c) in the Company Proxy Statement, the DevvStream Circular and other mailings or other distributions to the Company Shareholders, Southern Shareholders, DevvStream Shareholders or prospective investors with
respect to the consummation of the Transactions or in any amendment to any of documents identified in (a) through (c), will, when filed, made available, mailed or distributed, as the case may be, including on the Closing Date, contain or
will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, other than in the case of the Registration Statement, in light of
the circumstances under which they are made, not misleading. None of the information supplied or to be supplied by the Company expressly for inclusion or incorporation by reference in any press release or filing will, when filed or
distributed, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which
they are made, not misleading. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries makes any representation, warranty or covenant with respect to any information supplied by or on behalf of Southern, DevvStream or
their respective Affiliates.
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7.31 Company SEC Documents. Since June 6, 2025, the Company has filed with or furnished to (as applicable) the SEC all registration
statements, prospectuses, forms, reports, definitive proxy statements, schedules and documents and related exhibits required to be filed or furnished by it under the Securities Act or the Exchange Act, as the case may be, together with all
certifications required pursuant to SPX (such documents and any other documents filed or furnished by DevvStream with the SEC since June 6, 2025, as have been supplemented, modified or amended since the time of filing, collectively, the “Company SEC Documents”). As of their respective filing dates or, if supplemented, modified or amended since the time of filing, as of the date of the most recent supplement,
modification or amendment, the Company SEC Documents (a) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading and (b) complied as to form in all material respects with all applicable requirements of the Exchange Act or the Securities Act, as the case may be, in each case as in
effect on the date each such document was filed with or furnished to the SEC. None of the Company Subsidiaries is currently required to file periodic reports with the SEC. As of the date of this Agreement, there are no material outstanding
or unresolved comments received from the SEC with respect to any of the reports filed by the Company with the SEC. Since June 6, 2025, the Company has been and is in compliance in all material respects with the applicable provisions of SOX
and the applicable listing and corporate governance rules and regulations of the Nasdaq and Nasdaq Sweden. Neither the Company nor any of its Subsidiaries has outstanding, or has arranged any outstanding, “extension of credit” to any
director or executive officer within the meaning of Section 402 of SOX. With respect to each annual report on Form 10-K and each quarterly report on Form 10-Q included in the Company SEC Documents, the “principal executive officer” and
“principal financial officer” of the Company (as such terms are defined under SOX) have made all certifications required by Rules 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of the SOX.
ARTICLE VIII
8.1 Access and Information. During the period from the date of
this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 11.1 or the Closing (the “Interim Period”), and subject to Section 8.13, each Party shall, and shall cause its Representatives to, provide the other Parties and their
Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books
and records, financial and operating data and other information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements) of or pertaining to such Party, as the requesting Party or its
Representatives may reasonably request regarding such Party’s business, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects (including unaudited quarterly financial statements, a
consolidated quarterly balance sheet and income statement, copies of each material report, Schedule and other document filed with or received by a Governmental Authority pursuant to applicable securities Laws, and independent public
accountants’ work papers (subject to any required consents or conditions)). Each Party shall cause its Representatives to reasonably cooperate with the other Parties and their Representatives in connection with any such investigation; provided, however, that each requesting Party and its Representatives shall conduct any such activities in such a manner as
not to unreasonably interfere with the business or operations of the disclosing Party.
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Unless Southern and the Company shall otherwise consent in writing (such consent not to be unreasonably withheld,
conditioned or delayed), during the Interim Period, except as expressly contemplated by this Agreement (including Section 8.2 of the DevvStream Disclosure Schedules) or the
Ancillary Documents, DevvStream and its Subsidiaries shall (i) conduct their business, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply in all material respects with all Laws applicable
to them and their respective business, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business organization, to keep available the
services of their managers, directors, officers, employees and individual service providers, and to preserve the possession, control and condition of their assets.
Without limiting the generality of this Section 8.2, and
except as contemplated by the terms of this Agreement or the Ancillary Documents or as set forth in Section 8.2 of the DevvStream Disclosure Schedules, during the Interim Period,
without the written consent of Southern and the Company (such consent not to be unreasonably withheld, conditioned or delayed), DevvStream and its Subsidiaries shall not, unless required by applicable Law:
(b) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity or debt securities or any options, restricted stock units, restricted stock,
phantom stock, stock appreciation, profit participation, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity or debt securities, or other securities, including any securities convertible into or
exchangeable for any of its shares or other equity or debt securities or securities of any class and any other equity-based or phantom equity awards, or engage in any hedging transaction with a third Person with respect to such securities;
(c) split,
combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or declare, pay or set aside any dividend or other distribution (whether in cash, equity or property or any
combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities (except for the repurchase of Company Common Shares from former employees,
non-employee directors and consultants in accordance with agreements as in effect on the date hereof that are set forth on the DevvStream Disclosure Schedules providing for the repurchase of
shares in connection with any termination of service);
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(d) incur, create, assume, prepay, commit to, or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $1,000,000 individually or $2,000,000 in the aggregate, make a loan or
advance to or investment in any Person (other than advancement of expenses to employees in the ordinary course of business) in excess of $1,000,000 individually or $2,000,000 in the aggregate, or guarantee or endorse any Indebtedness,
Liability or obligation of any Person in excess of $1,000,000 individually or $2,000,000 in the aggregate;
(e) except as
required by the terms in existence as of the date hereof of any DevvStream Benefit Plan set forth on Section 6.21(b) of the DevvStream Disclosure Schedules or applicable Law,
(i) increase or decrease the wages, salaries or any other compensation or benefits provided to any of its current or former employees, officers, directors or other individual service providers, including under any DevvStream Benefit Plan
or any other benefit or compensation plan, agreement, contract, program, policy or arrangement that would be
a DevvStream Benefit Plan if in effect as of the date hereof (other than ordinary course increases in the annual base salary (and corresponding increases in any
annual target bonus linked to a percentage of base salary) to employees whose annual base salary is below $100,000 (prior to such increase)), (ii) make, announce or commit to make any retention, change in control, transaction, severance or similar payment (whether cash, properties or securities) to any employee,
officer, director or other individual service provider of DevvStream or (iii) enter into, establish, amend, modify, commence participation in or terminate any DevvStream Benefit Plan, including any benefit or compensation plan, policy,
program, contract, agreement or arrangement that would be a DevvStream Benefit Plan if in effect on the date
hereof;
(f) take any action to (i) hire, engage, or otherwise enter into any employment or consulting agreement or other service agreement
with, or terminate (other than for “cause”) any officer, director, or, other than in the ordinary course consistent with past practice, any employee or other individual service provider of DevvStream, (ii) grant, promise or announce any
cash, equity, equity-based or phantom equity awards, other than in the ordinary course and consistent with past practice, (iii) accelerate, or commit to accelerate, the payment, funding, right to payment or vesting of any compensation or
benefits, (iv) enter into, amend, negotiate or terminate any Labor Agreement or recognize or certify any labor union, works council or labor organization as the bargaining representative for
any employees of DevvStream, or (v) knowingly or through conduct waive or release any noncompetition, nonsolicitation, or other restrictive covenant obligation of any current or former employee or
other individual service provider;
(g) make, change or rescind (or request to change or rescind) any material election relating to Taxes, settle or compromise any Action, arbitration, investigation, audit or controversy relating to Taxes, enter into any closing agreement with respect to Taxes, file any amended Tax Return or claim for refund, or make (or request to make) any material change in its accounting
or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(h) sell,
assign, transfer, license or sublicense to any Person or otherwise extend, materially amend or modify, abandon, permit to lapse or expire, subject to any Lien, otherwise dispose of, or fail to
preserve any material Owned IP or DevvStream IP Licenses (excluding non-exclusive licenses granted to customers in the ordinary course of business consistent with past practice), disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets, or disclose, license, escrow, or otherwise make available, or grant any rights to, any Source Code owned or purported to be owned by
DevvStream;
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(i) other
than in the ordinary course and consistent with past practice with respect to customers and suppliers, (i) enter into any amendment of any DevvStream Material Contract, (ii) enter into any Contract that if entered into prior to the date
hereof would be a DevvStream Material Contract, provided that DevvStream may enter into such new Contracts so long as the aggregate amount payable under all such new Contracts does not exceed $1,500,000, or (iii) waive any material
benefit or right under any DevvStream Material Contract;
(j) fail to
maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(k) establish
any Subsidiary, enter into any new line of business, materially change the business carried on by DevvStream and its Subsidiaries, taken as a whole;
(l) voluntarily
terminate, cancel, materially modify or amend, permit to lapse, or fail to keep in force any insurance policies maintained for the benefit of DevvStream or providing insurance coverage with respect
to its assets, operations and activities, without replacing or revising such policies with a comparable amount of insurance coverage with substantially similar coverage to that which is currently in
effect;
(m) revalue any
of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with DevvStream’s outside
auditors;
(n) waive, release, assign, commence, initiate, satisfy, settle or compromise any Action, other than waivers, releases, assignments, settlements or compromises that
involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, DevvStream or its Affiliates) not in excess of $250,000 individually or $750,000 in the aggregate;
(o) acquire,
including by merger, consolidation, acquisition of equity interests or assets, or any other form of business
combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(p) make
capital expenditures in excess of $1,000,000 (individually for any project (or set of related projects) or $2,000,000 in the aggregate);
(q) authorize, recommend, propose or announce an intention to adopt, or otherwise effect a plan of complete or partial liquidation, rehabilitation, dissolution, merger, consolidation,
restructuring, recapitalization or other reorganization or similar transaction;
(r) purchase, sell, lease, license, transfer, exchange or swap, pledge, mortgage or otherwise pledge or encumber (including securitizations), or transfer or otherwise dispose of any
material portion of its properties, assets or rights (including equity interests of DevvStream);
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(s) other
then in connection with the solicitation of proxies in connection with DevvStream Meeting or DevvStream Support & Lock-Up Agreements, enter into any agreement, understanding or arrangement with respect to the voting of equity securities of DevvStream; or
(t) agree to
take any action that is prohibited by this Section 8.2
Nothing contained in this Section 8.2 shall be deemed to
give Southern, the Company or any other Party, directly or indirectly, the right to control or direct DevvStream prior to the Closing. Prior to the Closing, DevvStream shall exercise, consistent with the terms and conditions hereof, control
over its business and operations. The Parties acknowledge and agree that for purposes this Section 8.2, the Company and Southern shall be deemed to have consented in writing to
any of the foregoing actions taken or proposed to be taken by DevvStream, if (x) DevvStream delivers to the Company and Southern written request to take such action and the Company and Southern fail to respond thereto within two (2)
Business Days following its receipt of such request, or (y) if DevvStream receives written approval or written acknowledgment (without objection) of the taking of such action from, in the case of the Company, the Chief Executive Officer or
the Chief Financial Officer (or equivalent) of the Company or the Chairman of the Company Board or, in the case of Southern, any of the individuals listed on Section 13.1(a) of
the Southern Disclosure Schedules.
Unless the Company and DevvStream shall otherwise consent in writing (such consent not to be unreasonably withheld,
conditioned or delayed), during the Interim Period, except as expressly contemplated by this Agreement (including Section 8.3 of the Southern Disclosure Schedules) or the
Ancillary Documents, Southern shall (i) conduct its business, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply in all material respects with all Laws applicable to its business, assets
and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business organization, to keep available the services of their managers, directors, officers,
employees and individual service providers, and to preserve the possession, control and condition of their assets.
Without limiting the generality of this Section 8.3, and
except as contemplated by the terms of this Agreement or the Ancillary Documents or as set forth in Section 8.3 of the Southern Disclosure Schedules, during the Interim Period,
without the written consent of the Company and DevvStream (such consent not to be unreasonably withheld, conditioned or delayed), Southern shall not, unless required by applicable Law:
(b) authorize
for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity or debt securities or any options, restricted stock units, restricted stock, phantom stock, stock
appreciation, profit participation, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity or debt securities, or other securities, including any securities convertible into or exchangeable for
any of its shares or other equity or debt securities or securities of any class and any other equity-based or phantom equity awards, or engage in any hedging transaction with a third Person with respect to such securities;
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(c) split,
combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or declare, pay or set aside any dividend or other distribution (whether in cash, equity or property or any
combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities (except for the repurchase of Southern Shares from former employees,
non-employee directors and consultants in accordance with agreements as in effect on the date hereof that are set forth on the Southern Disclosure Schedules providing for the repurchase of shares in connection with any termination of
service);
(d) incur,
create, assume, prepay, commit to, or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $1,000,000 individually or $2,000,000 in the aggregate, make a loan or advance to or investment in any
Person (other than advancement of expenses to employees in the ordinary course of business) in excess of $1,000,000 individually or $2,000,000 in the aggregate, or guarantee or endorse any Indebtedness, Liability or obligation of any
Person in excess of $1,000,000 individually or $2,000,000 in the aggregate;
(e) except
as required by the terms in existence as of the date hereof of any Southern Benefit Plan set forth on Section 4.20(b) of the Southern Disclosure Schedules or applicable Law,
(i) increase or decrease the wages, salaries or any other compensation or benefits provided to any of its current or former employees, officers, directors or other individual service providers, including under any Southern Benefit Plan
or any other benefit or compensation plan, agreement, contract, program, policy or arrangement that would be a Southern Benefit Plan if in effect as of the date hereof
(other than ordinary course increases in the annual base salary (and corresponding increases in any annual target bonus linked to a percentage of base salary) to employees whose annual base salary is below $100,000 (prior to
such increase)), (ii) make, announce or commit to make any retention, change in control, transaction, severance or similar payment (whether cash, properties or securities) to any employee, officer, director or other individual service
provider of Southern or (iii) enter into, establish, amend, modify, commence participation in or terminate any Southern Benefit Plan, including any benefit or compensation plan, policy, program, contract, agreement or arrangement that
would be a Southern Benefit Plan if in effect on the date hereof;
(f) take any
action to (i) hire, engage, or otherwise enter into any employment or consulting agreement or other service agreement with, or terminate (other than for “cause”) any officer, director, or, other than in the ordinary course consistent with
past practice, any employee or other individual service provider of Southern, (ii) grant, promise or announce any cash, equity, equity-based or phantom equity awards, other than in the ordinary course and consistent with past practice,
(iii) accelerate, or commit to accelerate, the payment, funding, right to payment or vesting of any compensation or benefits, (iv) enter into, amend, negotiate or terminate any Labor Agreement or recognize or certify any labor union,
works council or labor organization as the bargaining representative for any employees of Southern, or (v) knowingly or through conduct waive or release any noncompetition, nonsolicitation, or other restrictive covenant obligation of any
current or former employee or other individual service provider;
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(g) make,
change or rescind (or request to change or rescind) any material election relating to Taxes, settle or compromise any Action, arbitration, investigation, audit or controversy relating to Taxes, enter into any closing agreement with
respect to Taxes, file any amended Tax Return or claim for refund, or make (or request to make) any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with
GAAP;
(h) sell,
assign, transfer, license or sublicense to any Person or otherwise extend, materially amend or modify, abandon, permit to lapse or expire, subject to any Lien, otherwise dispose of, or fail to preserve any material Owned IP or Southern
IP Licenses (excluding non-exclusive licenses granted to customers in the ordinary course of business consistent with past practice), disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets, or
disclose, license, escrow, or otherwise make available, or grant any rights to, any Source Code owned or purported to be owned by Southern;
(i) other
than in the ordinary course and consistent with past practice with respect to customers and suppliers, (i) enter into any amendment of any Southern Material Contract, (ii) enter into any Contract that if entered into prior to the date
hereof would be a Southern Material Contract, provided that Southern may enter into such new Contracts so long as the aggregate amount payable under all such new Contracts does not exceed $1,500,000, or (iii) waive any material benefit
or right under any Southern Material Contract;
(j) fail to
maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(k) establish
any Subsidiary, enter into any new line of business, materially change the business carried on by the Southern and its Subsidiaries, taken as a whole;
(l) voluntarily
terminate, cancel, materially modify or amend, permit to lapse, or fail to keep in force any insurance policies maintained for the benefit of Southern or providing insurance coverage with respect to its assets, operations and
activities, without replacing or revising such policies with a comparable amount of insurance coverage with substantially similar coverage to that which is currently in effect;
(m) revalue
any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with Southern outside auditors;
(n) waive,
release, assign, commence, initiate, satisfy, settle or compromise any Action, other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable
relief on, or the admission of wrongdoing by, Southern or its Affiliates) not in excess of $250,000 individually or $750,000 in the aggregate;
(o) acquire,
including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or
any material amount of assets outside the ordinary course of business consistent with past practice;
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(p) make
capital expenditures in excess of $1,000,000 (individually for any project (or set of related projects) or $2,000,000 in the aggregate);
(q) authorize,
recommend, propose or announce an intention to adopt, or otherwise effect a plan of complete or partial liquidation, rehabilitation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or similar
transaction;
(r) purchase,
sell, lease, license, transfer, exchange or swap, pledge, mortgage or otherwise pledge or encumber (including securitizations), or transfer or otherwise dispose of any material portion of its properties, assets or rights (including
equity interests of Southern);
(s) enter
into any agreement, understanding or arrangement with respect to the voting of equity securities of Southern; or
(t) agree to
take any action that is prohibited by this Section 8.3.
Nothing contained in this Section 8.3 shall be deemed to
give the Company, DevvStream or any other Party, directly or indirectly, the right to control or direct Southern prior to the Closing. Prior to the Closing, Southern shall exercise, consistent with the terms and conditions hereof, control
over its business and operations. The Parties acknowledge and agree that for purposes this Section 8.3, DevvStream and the Company shall be deemed to have consented in writing to
any of the foregoing actions taken or proposed to be taken by Southern, if (x) Southern delivers to DevvStream and the Company written request to take such action and DevvStream and the Company fail to respond thereto within two (2)
Business Days following its receipt of such request, or (y) if Southern receives written approval or written acknowledgment (without objection) of the taking of such action from, in the case of DevvStream, the Chief Executive Officer or the
Chief Financial Officer (or equivalent) of DevvStream or the Chairman of the DevvStream Board or, in the case of the Company, the Chief Executive Officer or the Chief Financial Officer (or equivalent) of the Company or the Chairman of the
Company Board.
Unless Southern and DevvStream shall otherwise consent in writing (such consent not to be unreasonably withheld,
conditioned or delayed), during the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents, each Merger Sub shall comply with all Laws applicable to such Merger Sub.
Without limiting the generality of this Section 8.4 and
except as contemplated by the terms of this Agreement or the Ancillary Documents, during the Interim Period, without the prior written consent of Southern and DevvStream (such consent not to be unreasonably withheld, conditioned or
delayed), neither Merger Sub shall:
(a) amend,
waive or otherwise change, in any respect, its Organizational Documents;
(b) issue,
grant, sell, pledge, dispose of or authorize to issue, grant, sell, pledge or dispose of any of its equity securities, or issue or sell, or authorize to issue or sell, any options, warrants, commitments, subscriptions or rights of any
kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based
awards;
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(c) (i)
split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or (ii) declare, pay or set aside any dividend or other distribution (whether in cash, equity or
property or any combination thereof) in respect of its shares or other equity interests, or (iii) other than as permitted under its Organizational Documents, directly or indirectly redeem, purchase or otherwise acquire or offer to
acquire any of its securities;
(d) adopt a
plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than with respect to the Merger); or
(e) authorize,
recommend, propose or announce an intention to adopt, or otherwise effect a plan of complete or partial liquidation, rehabilitation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or similar
transaction;
(f) buy,
purchase or otherwise acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material portion of assets, securities, properties, interests or businesses of any Person outside the
ordinary course of business;
(g) enter
into any Contract, whether written, oral or otherwise, relating to the employment of any Person or the provision of services by any Person;
(h) carry on
any business or otherwise engage in any activities, other than any activities reasonably necessary to implement the Transactions;
(i) incur
any liabilities, except to the extent reasonably necessary to implement the Transactions; or
(j) agree to
take any action that is prohibited by this Section 8.4.
Unless Southern and DevvStream shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, except as expressly contemplated by this
Agreement (including Section 8.5 of the Company Disclosure Schedules) or the Ancillary Documents, the Company and its Subsidiaries (other than the Merger Subs) shall (i) conduct
their business, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply in all material respects with all Laws applicable to them and their respective business, assets and employees, and (iii)
take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business organization, to keep available the services of their managers, directors, officers, employees and individual
service providers, and to preserve the possession, control and condition of their assets.
Without limiting the generality of this Section 8.5, and except as contemplated by the terms of this Agreement or the Ancillary Documents or as set
forth in Section 8.5 of the Company Disclosure Schedules, during the Interim Period, without the written consent of Southern and DevvStream (such consent not to be unreasonably
withheld, conditioned or delayed), the Company and its Subsidiaries shall not, unless required by applicable Law:
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(a) Materially
amend, waive or otherwise materially change, in any respect, its Organizational Documents;
(b) split,
combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or declare, pay or set aside any dividend or other distribution (whether in cash, equity or property or any
combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities (except for the repurchase of Company Common Shares from former
employees, non-employee directors and consultants in accordance with agreements as in effect on the date hereof that are set forth on the Company Disclosure Schedules providing for the repurchase of shares in connection with any
termination of service);
(c) make,
change or rescind (or request to change or rescind) any material election relating to Taxes, settle or compromise any Action, arbitration, investigation, audit or controversy relating to Taxes, enter into any closing agreement with
respect to Taxes, file any amended Tax Return or claim for refund, or make (or request to make) any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with
GAAP;
(d) other
than in the ordinary course of business, sell, assign, transfer, license or sublicense to any Person or otherwise extend, materially amend or modify, abandon, permit to lapse or expire, subject to any Lien, otherwise dispose of, or fail
to preserve any material Owned IP or Company IP Licenses (excluding non-exclusive licenses granted to customers in the ordinary course of business consistent with past practice), disclose to any Person who has not entered into a
confidentiality agreement any Trade Secrets, or disclose, license, escrow, or otherwise make available, or grant any rights to, any Source Code owned or purported to be owned by the Company;
(e) fail to
maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(f) enter
into any new line of business, materially change the business carried on by the Company and its Subsidiaries, taken as a whole;
(g) voluntarily
terminate, cancel, permit to lapse, or fail to keep in force any insurance policies maintained for the benefit of the Company or providing insurance coverage with respect to its assets, operations and activities, without replacing or
revising such policies with a comparable amount of insurance coverage with substantially similar coverage to that which is currently in effect; provided, however, that the
Company may reduce the coverage limits or increase the deductibles of such existing insurance policies;
(h) revalue
any of its material assets;
(i) acquire,
including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or
any material amount of assets outside the ordinary course of business consistent with past practice, if such acquisition would be material to the Company and its Subsidiaries, taken as a whole;
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(j) authorize,
recommend, propose or announce an intention to adopt, or otherwise effect a plan of complete or partial liquidation, rehabilitation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or similar
transaction;
(k) purchase,
sell, lease, license, transfer, exchange or swap, pledge, mortgage or otherwise pledge or encumber (including securitizations), or transfer or otherwise dispose of any material portion of its properties, assets or rights (including
equity interests of the Company) outside the ordinary course of business consistent with past practice;
(l) other
than in connection with the solicitation of proxies in connection with the Company Meeting or the Company Support & Lock-Up Agreements, enter into any agreement, understanding or arrangement with respect to the voting of equity
securities of the Company; or
(m) agree to
take any action that is prohibited by this Section 8.5.
Nothing contained in this Section 8.5 shall be deemed to
give Southern, DevvStream or any other Party, directly or indirectly, the right to control or direct the Company prior to the Closing. Prior to the Closing, the Company shall exercise, consistent with the terms and conditions hereof,
control over its business and operations. The Parties acknowledge and agree that for purposes this Section 8.5, DevvStream and Southern shall be deemed to have consented in
writing to any of the foregoing actions taken or proposed to be taken by the Company, if (x) the Company delivers to DevvStream and Southern written request to take such action and DevvStream and Southern fail to respond thereto within two
(2) Business Days following its receipt of such request, or (y) if the Company receives written approval or written acknowledgment (without objection) of the taking of such action from, in the case of DevvStream, the Chief Executive Officer
or the Chief Financial Officer (or equivalent) of DevvStream or the Chairman of the DevvStream Board or, in the case of Southern, any of the individuals listed on Section 13.1(a)
of the Southern Disclosure Schedules.
(a) Subject
to Section 8.7, which shall govern in relation to Regulatory Approvals, each of the Parties covenants and agrees that during the Interim Period, each of the Parties shall do
all such commercially reasonable acts and things as may be necessary or advisable in order to consummate and make effective, as soon as reasonably practicable, the Transactions and, without limiting the generality of the foregoing, the
Parties shall and, where applicable, shall cause each of its Subsidiaries to:
(i) use commercially reasonable efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder as set forth in Article IX to the extent the same is within its control (including, for the
avoidance of doubt, the Required Company Shareholder Approval, the Required DevvStream Shareholder Approval, the Company Support & Lock-Up Agreements, the DevvStream Support & Lock-Up Agreements and the Southern Support &
Lock-Up Agreement);
(ii) use commercially reasonable efforts to oppose, lift or rescind any Order seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the consummation of the Domestication, the Mergers or the other
Transactions and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement, any Ancillary Document, the Domestication, the Mergers or the
Transactions; and
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(iii) not take any action, or refrain from taking any commercially reasonable action, or permit any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the
consummation of the Pre-Closing Reorganization, Domestication, the Mergers or the other Transactions.
(b) The
Company covenants and agrees that from the date hereof until the end of the Interim Period, the Company shall use commercially reasonable efforts to obtain and maintain in force the Stock Exchange Approvals (as applicable). Southern and
DevvStream shall use commercially reasonable efforts to cooperate with the Company in respect of the foregoing, including by providing information reasonably requested by the Company in connection therewith in a timely manner.
(c) Southern
covenants and agrees that from the date hereof until the end of the Interim Period, Southern shall promptly notify the Company and DevvStream in writing of:
(i) any Southern Material Adverse Effect;
(ii) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement, any
Ancillary Document or the Transactions;
(iii) any notice or other communication from any Person that has a material business relationship with Southern to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with
Southern as a result of this Agreement or the Transactions;
(iv) any notice or other communication from any Governmental Authority in connection with this Agreement or the Transactions (and to the extent legally permitted Southern shall promptly following the receipt thereof provide a copy
of any such written notice or communication to the Company and DevvStream);
(v) any material filing, Actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting Southern;
(vi) any failure of Southern to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it or its Affiliates hereunder, in any material respect;
(vii) any material non-compliance with any Law by Southern; or
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(viii) the discovery of any fact or circumstance that, or Southern becoming aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would make any representation or warranty of Southern
contained in this Agreement false or untrue, would reasonably be expected to constitute a breach by Southern of any covenant or agreement contained in this Agreement, or would reasonably be expected to cause or result in any of the
conditions to the Closing set forth in this Agreement, not capable of being satisfied or the satisfaction of those conditions being materially delayed.
(d) DevvStream
covenants and agrees that from the date hereof until the end of the Interim Period, DevvStream shall promptly notify the Company and Southern in writing of:
(i) any DevvStream Material Adverse Effect;
(ii) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement, any
Ancillary Document or the Transactions;
(iii) any notice or other communication from any Person that has a material business relationship with DevvStream or its Subsidiaries (taken as a whole) to the effect that such Person is terminating or otherwise materially
adversely modifying its relationship with DevvStream or any of its Subsidiaries as a result of this Agreement or the Transactions;
(iv) any notice or other communication from any Governmental Authority in connection with this Agreement or the Transactions (and to the extent legally permitted DevvStream shall promptly following the receipt thereof provide a copy
of any such written notice or communication to the Company and Southern);
(v) (v) any material filing, Actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting DevvStream or any of its Subsidiaries;
(vi) any failure of DevvStream to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it or its Affiliates hereunder, in any material respect;
(vii) any material non-compliance with any Law by DevvStream or its Affiliates; or
(viii) the discovery of any fact or circumstance that, or DevvStream becoming aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would make any representation or warranty of
DevvStream contained in this Agreement false or untrue, would reasonably be expected to constitute a breach by DevvStream of any covenant or agreement contained in this Agreement, or would reasonably be expected to cause or result in
any of the conditions to the Closing set forth in this Agreement not capable of being satisfied or the satisfaction of those conditions being materially delayed.
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(e) The
Company covenants and agrees that from the date hereof until the end of the Interim Period, the Company shall promptly notify Southern and DevvStream in writing of:
(i) any Company Material Adverse Effect;
(ii) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement, any
Ancillary Document or the Transactions;
(iii) any notice or other communication from any Person that has a material business relationship with the Company or its Subsidiaries (taken as a whole) to the effect that such Person is terminating or otherwise materially
adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Transactions;
(iv) any notice or other communication from any Governmental Authority in connection with this Agreement or the Transactions (and to the extent legally permitted the Company shall promptly following the receipt thereof provide a
copy of any such written notice or communication to Southern and DevvStream); or
(v) any material filing, Actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries;
(vi) any failure of Company to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it or its Affiliates hereunder, in any material respect;
(vii) any material non-compliance with any Law by the Company or its Affiliates; or
(viii) the discovery of any fact or circumstance that, or the Company becoming aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would make any representation or warranty of the
Company contained in this Agreement false or untrue, would reasonably be expected to constitute a breach by the Company of any covenant or agreement contained in this Agreement, or would reasonably be expected to cause or result in any
of the conditions to the Closing set forth in this Agreement, not capable of being satisfied or the satisfaction of those conditions being materially delayed.
(f) During
the Interim Period, no Party nor any of their Affiliates shall sell shares of such Party to brokers for any naked short coverage.
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(a) As soon
as reasonably practicable after the date hereof each Party, or where appropriate, the Parties jointly, shall make all notifications, filings, applications and submissions with Governmental Authorities required or advisable in connection
with the Regulatory Approvals, including the Required Regulatory Approvals, and shall use commercially reasonable efforts to obtain as soon as reasonably practicable and maintain the Regulatory Approvals, including the Required
Regulatory Approvals, subject to the terms hereof.
(b) All
filing fees (including any Taxes thereon) in respect of any filing made to any Governmental Authority in respect of any Regulatory Approvals shall be shared by the Parties equally.
(c) The
Parties shall (i) cooperate with and keep one another fully and promptly informed as to the status of and the processes and proceedings relating to obtaining the Regulatory Approvals and shall promptly notify each other of any
communication from any Governmental Authority in respect this Agreement, (ii) provide or submit on a timely basis, and as promptly as practicable, all documentation and information that is required, or in the discretion of a Party,
acting reasonably, advisable, in response to any inquiries or requests received from any state attorney general, antitrust authority or other Governmental Authority in connection with obtaining the Regulatory Approvals and use their
commercially reasonable efforts to ensure that such information does not contain a Misrepresentation; provided, however,
that, except as otherwise provided in this Agreement, including Section 7.19, nothing in this provision shall require a Party to provide information that is not in its
possession or not otherwise reasonably available to it, and (iii) not make any submissions or filings to any Governmental Authority related to the Transactions, or participate in any meetings or any material conversations with any
Governmental Authority in respect of any filings, submissions, investigations or other inquiries or matters related to the Transactions, unless it consults with the other Party in advance and, to the extent not precluded by such
Governmental Authority, gives the other Party a reasonable opportunity to review drafts of any submissions or filings (and will give due consideration to any comments received from such other Parties) and to attend and participate in
any communications. Despite the foregoing, submissions, filings or other written communications with any Governmental Authority may be redacted as necessary before sharing with the other Parties to address reasonable attorney-client or
other privilege or confidentiality concerns, provided that a Party must provide external legal counsel to the other Parties non-redacted versions of drafts and final
submissions, filings or other written communications with any Governmental Authority on the basis that the redacted information will not be shared with its clients.
(d) Each
Party shall promptly notify the other Parties if it becomes aware that any (i) application, filing, document or other submission for a Regulatory Approval contains a Misrepresentation, or (ii) any Regulatory Approval contains, reflects
or was obtained following the submission of any application, filing, document or other submission containing a Misrepresentation, such that an amendment or supplement may be necessary or advisable. In such case, the Parties shall
co-operate in the preparation, filing and dissemination, as applicable, of any such amendment or supplement.
(e) The
Parties shall request that any Required Regulatory Approval, be processed by the applicable Governmental Authority on an expedited basis and, to the extent that a public hearing is held, the Parties shall request the earliest possible
hearing date for the consideration of such Regulatory Approvals.
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(f) If any
objections are asserted with respect to the Transactions under any Law, or if any proceeding is instituted or threatened by any Governmental Authority challenging or which could lead to a challenge of any of the Transactions as not in
compliance with Law or as not satisfying any applicable legal text under a Law necessary to obtain the Regulatory Approvals, the Parties shall use commercially reasonable efforts (in accordance with Section 8.6(a)(ii)) to resolve such objection, proceeding or Action, as the case may be, so as to allow the Effective Time to occur on or prior to the Outside Date.
(g) Notwithstanding
anything to the contrary in this Agreement, no Party or any of its Subsidiaries is permitted or required to divest or to offer to divest any of their material assets or properties or to agree to any material behavioral remedy,
undertaking, commitment, or restriction on the operations of Southern, DevvStream or the Company in order to secure any Regulatory Approval, except with the express consent of Southern, DevvStream and the Company.
(a) For
purposes of this Agreement, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any indication of interest in making an offer or proposal, from any Person or
group at any time and (ii) an “Alternative Transaction” means a transaction (other than the Transactions) concerning the sale of (i) all or any material part of the business or
assets (other than a sale of immaterial assets in the ordinary course of business consistent with past practice) of the Company, Southern or DevvStream, as applicable, or (ii) any of the shares or other equity interests or profits of the
Company, Southern or DevvStream, as applicable, in any case, whether such transaction takes the form of a sale of shares or other equity interests, assets, merger, consolidation, issuance of debt securities, management Contract, joint
venture or partnership, or otherwise.
(b) During the
Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources in furtherance of the Transactions, each Party shall not, and shall cause its Representatives to not, without the
prior written consent of the Company, Southern and DevvStream, directly or indirectly, (i) solicit, assist, initiate or facilitate the making, submission or announcement of, or intentionally encourage, any Acquisition Proposal, (ii)
furnish any non-public information regarding such Party or its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any Person or group (other than a Party to this
Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to, or that could reasonably be
expected to lead to, an Acquisition Proposal, (iv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal, or (v) negotiate or enter into any letter of intent, agreement in principle,
acquisition agreement or other similar agreement related to any Acquisition Proposal.
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(c) Each Party
shall notify the other Parties as promptly as practicable (and in any event within 48 hours) in writing of the receipt by such Party or any of its Representatives of (i) any bona fide inquiries, proposals or offers, requests for
information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could be
expected to result in an Acquisition Proposal, and (ii) any request for non-public information relating to such Party or its Affiliates in connection with any Acquisition Proposal, specifying in each case, the material terms and
conditions thereof. Each Party shall keep the others promptly informed of the status of any such inquiries, proposals, offers or requests for information. During the Interim Period, each Party shall, and shall cause its Representatives
to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person with respect to any Acquisition Proposal and shall, and shall direct its Representatives to, cease and terminate any such
solicitations, discussions or negotiations.
(d) If the
Company or DevvStream (each, a “Receiving Party”) receives a bona fide unsolicited Acquisition Proposal that constitutes a Superior Proposal, the Company Board (acting after
approval by the Company Special Committee) or DevvStream Board (acting after approval by the DevvStream Special Committee) (as applicable) may, or may cause the Company or DevvStream to, as applicable, approve, recommend, or enter into a
definitive agreement with respect to such Superior Proposal, if and only if:
(i) the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing standstill or similar restriction;
(ii) the Receiving Party has been, and continues to be, in compliance with its obligations under this Section 8.8;
(iii) the Receiving Party or its Representatives have delivered to the other Parties (other than the party making the Superior Proposal, if applicable) a written notice of the determination of the Receiving Party’s Board (acting after
approval by the Company Special Committee and/or DevvStream Special Committee, as applicable) that it has received a Superior Proposal and of the intention to approve or enter into a definitive agreement with respect to such Superior
Proposal, including a notice as to the value in financial terms that the Receiving Party’s Board (acting after approval by the Company Special Committee and/or DevvStream Special Committee, as applicable) has, in consultation with its
financial advisors, determined should be ascribed to any non-cash consideration offered under the Superior Proposal (the “Superior Proposal Notice”);
(iv) the Receiving Party or its Representatives have provided to the other Parties, a copy of any proposed definitive agreement, LOI or term sheet for the Superior Proposal;
(v) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the other Parties received the Superior Proposal
Notice from the Receiving Party and the date on which the other Parties received a copy of the definitive agreement for the Superior Proposal;
(vi) after the Matching Period, the Receiving Party’s Board (acting after approval by the Company Special Committee and/or DevvStream Special Committee, as applicable) has determined in good faith, after consultation with its legal
counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal;
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(vii) the Company Shareholders (if the Company is the Receiving Party) or the DevvStream Shareholders (if DevvStream is the Receiving Party) have not approved the Mergers, as applicable; and
(viii) prior to or concurrently with entering into such definitive agreement the Receiving Party terminates this Agreement.
If Southern receives a bona fide unsolicited Acquisition Proposal, whether or not it constitutes a Superior Proposal, the Southern Board shall not approve,
recommend, or enter into a definitive agreement with respect to such Acquisition Proposal.
(e) During the
Matching Period, or such longer period as the Receiving Party may approve in writing for such purpose: (a) the Receiving Party’s Board (acting after approval by the Company Special Committee and/or DevvStream Special Committee, as
applicable) shall review any offer made by the other Parties to amend the terms of this Agreement and the Merger in good faith, after consultation with legal and financial advisors, in order to determine whether such proposal would, upon
acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) the Receiving Party shall negotiate in good faith with the other Parties to make such amendments to the
terms of this Agreement as would enable the Receiving Party or its affiliates to proceed with the Transactions on such amended terms. If as a consequence of the foregoing the Receiving Party’s Board (acting after approval by the Company
Special Committee and/or DevvStream Special Committee, as applicable) determines that such Acquisition Proposal would cease to be a Superior Proposal, the Receiving Party shall promptly so advise the other Parties and such parties shall
amend this Agreement to reflect such offer made by the other Parties and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(f) Each
successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders or DevvStream Shareholders (as applicable)
or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 8.8(f).
(g) Nothing
in this Agreement shall prohibit the Company Board (acting after approval by the Company Special Committee) or DevvStream Board (acting after approval by the DevvStream Special Committee) from responding through a directors’ circular or
otherwise as required by applicable Laws to an Acquisition Proposal that it determines is not a Superior Proposal to inform them of such. Further, nothing in this Agreement shall prevent the Company Board (acting after approval by the
Company Special Committee) or DevvStream Board (acting after approval by the DevvStream Special Committee) from making any disclosure to the Company Shareholders or DevvStream Shareholders if the Company Board (acting after approval by
the Company Special Committee) or DevvStream Board (acting after approval by the DevvStream Special Committee), acting in good faith and upon the advice of its legal and financial advisors, shall have determined that the failure to make
such disclosure would be inconsistent with the fiduciary duties of the Company Board or DevvStream Board or such disclosure is otherwise required under Law; provided, however, that, notwithstanding that the Company Board (acting after
approval by the Company Special Committee) or DevvStream Board (acting after approval by the DevvStream Special Committee) shall be permitted to make such disclosure, the Company Board (acting after approval by the Company Special
Committee) or DevvStream Board (acting after approval by the DevvStream Special Committee) shall not be permitted to make a Company Change in Recommendation or DevvStream Change in Recommendation, other than as permitted by Section 8.8(d).
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(h) If the
Receiving Party provides a Superior Proposal Notice to the other Parties after a date that is less than five Business Days before the Company Meeting or DevvStream Meeting, the Receiving Party shall, upon request from any other Party,
postpone the Company Meeting or DevvStream Meeting to a date that is not more than 15 Business Days after the scheduled date of the Company Meeting or DevvStream Meeting (and, in any event, no less than five Business Days prior to the
Outside Date); provided, however, that if the Receiving Party has fully complied with Section 8.8(d) through Section 8.8(e),
and has determined that the Acquisition Proposal continues to be a Superior Proposal in accordance with Section 8.8(d), it may then cancel the Company Meeting or DevvStream
Meeting only if prior to or concurrently therewith it enters into such definitive agreement and the Receiving Party terminates this Agreement immediately prior thereto.
(a) Each of
Southern and DevvStream acknowledges and agrees that it is aware, and that its Affiliates are aware (and each of their respective Representatives is aware or, upon receipt of any material nonpublic information of the Company, will be
advised) of the restrictions imposed by U.S. federal securities Laws, Canadian securities Laws (as applicable), and the rules of the applicable securities exchange and other applicable foreign and domestic Laws on a Person possessing
material nonpublic information about a publicly traded company. Each of Southern and DevvStream hereby agrees that, while it is in possession of such material nonpublic information, it shall not purchase or sell any securities of the
Company (other than in connection with the Mergers in accordance with Article I and Article III), communicate such
information to any third party, take any other action with respect to the Company in violation of such Laws, or cause or encourage any third party to do any of the foregoing.
(b) Each of
the Company and Southern acknowledges and agrees that it is aware, and that its Affiliates are aware (and each of their respective Representatives is aware or, upon receipt of any material nonpublic information of DevvStream, will be
advised) of the restrictions imposed by U.S. federal securities Laws, Canadian securities Laws (as applicable), and the rules of the applicable securities exchange and other applicable foreign and domestic Laws on a Person possessing
material nonpublic information about a publicly traded company. Each of the Company and Southern hereby agrees that, while it is in possession of such material nonpublic information, it shall not purchase or sell any securities of
DevvStream (other than in connection with the Mergers in accordance with Article I and Article III), communicate
such information to any third party, take any other action with respect to DevvStream in violation of such Laws, or cause or encourage any third party to do any of the foregoing.
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8.10 Notification of Certain Matters.
During the Interim Period, each Party shall give prompt notice to the other Parties if such Party or its Affiliates: (a) fails to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it or its
Affiliates hereunder, in any material respect; (b) receives any notice or other communication in writing from any third party (including any Governmental Authority) alleging (i) that the Consent of such third party is or may be required in
connection with the Transactions or (ii) any non-compliance with any Law by such Person or its Affiliates; (c) receives any notice or other communication from any Governmental Authority in connection with the Transactions; (d) discovers any
fact or circumstance that, or becomes aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would make any representation or warranty contained in this Agreement, false or untrue, would reasonably
be expected to constitute a breach of any covenant or agreement contained in this Agreement, or would reasonably be expected to cause or result in any of the conditions to the Closing set forth in this Agreement, not being satisfied or the
satisfaction of those conditions being materially delayed; or (e) becomes aware of the commencement or threat, in writing, of any Action against such Person or any of its Affiliates, or any of their respective properties or assets, or, to
the actual knowledge of such Person, any officer, director, partner, member or manager, in his, her or its capacity as such, of such Person or of its Affiliates with respect to the consummation of the Transactions. No such notice shall
constitute an acknowledgement or admission by the Party providing the notice regarding whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties or
covenants contained in this Agreement have been breached.
(a) The
Parties shall pay equally all transfer, documentary, sales, use, stamp, registration, value added or other similar Taxes incurred in connection with the Transactions (collectively, the “Transfer
Taxes”) and file all necessary Tax Returns with respect to all Transfer Taxes, and if required by applicable Law, the Parties shall, and shall cause their respective Affiliates to, join in the execution of any such Tax
Returns and other document. Notwithstanding any other provision of this Agreement, the Parties shall (and shall cause their respective Affiliates to) cooperate in good faith to minimize, to the extent permissible under applicable Law, the
amount of any such Transfer Taxes, which shall constitute “Expenses” hereunder. For the avoidance of doubt, Transfer Taxes shall not include any income Taxes.
(b) Parties
shall execute and deliver (i) officer’s certificates, in customary form, in a timely manner upon request by the other Party and (ii) any other representations reasonably requested by counsel to Southern, counsel to DevvStream or counsel
to the Company, as applicable, for purposes of rendering opinions regarding the Intended US Tax Treatment and other tax matters in connection with the Transactions, at such time or times as may be requested
by counsel to Southern, counsel to DevvStream or counsel to the Company, including in connection with the Closing and any filing with the SEC.
8.12
Securityholder Litigation and Dissenter's Rights Each Party shall give the
other Parties prompt written notice of any securityholder Action against such Party or its directors, officers or other representatives relating to this Agreement, any Ancillary Document or the Transactions, shall keep the other Parties
reasonably informed regarding any such litigation, and shall give the other Parties the opportunity to participate (at such other's Party's expense) in the defense or settlement of any such litigation. Each Party shall give the other
Parties the right to review and comment on all filings or responses to be made by such Party in connection with any such litigation, and will in good faith take such comments into account. No Party shall offer to or agree to
settle any such litigation without the other Parties' prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
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8.13 Confidential Information.
During the Interim Period, each Party shall be bound by and comply with the provisions set forth in the respective confidentiality agreements entered between and among them as if such provisions were set forth herein, and such provisions
are hereby incorporated herein by reference. Each Party acknowledges and agrees that each is aware, and each of their respective Affiliates and representatives is aware (or upon receipt of any material nonpublic information of the other
Party, will be advised), of the restrictions imposed by the United States federal securities Laws and other applicable foreign and domestic Laws on Persons possessing material nonpublic information about a public company.
(a) The Parties shall take all necessary action, including causing the existing directors of the Company to resign, such that (i) effective as of the Effective Time, the post-closing Company Board will consist of seven (7)
directors (the “Post-Closing Company Board”), including: (A) four (4) directors who shall be designated by the Company prior to the Closing (one of whom shall be the Chief
Executive Officer of the Company), (B) two (2) directors who shall be designated by Southern prior to the Closing, and (C) one (1) director who shall be designated by DevvStream prior to the Closing. The Parties shall ensure that the
composition of the Post-Closing Company Board (including the designation of independent directors) satisfies the applicable independence rules and regulations of Nasdaq, Nasdaq Sweden and the SEC. The Post-Closing Company Board will be
elected effective as of the Effective Time in accordance with the Closing Company Organizational Documents effective as of the Effective Time and Nasdaq and Nasdaq Sweden rules. Prior to the effectiveness of the Registration Statement,
the Company, Southern and DevvStream shall determine the directors to be appointed to the audit, compensation and nominating committees.
(b) The
Parties shall take all action necessary such that the individual serving as the Chairman of the post-Closing Company Board immediately prior to the Effective Time will serve as the Chairman of the post-Closing Company Board immediately
after the Effective Time. The Parties shall take all action necessary such that an individual designated by the Company will serve as Chief Executive Officer of the Company immediately after the Effective Time.
(c) Southern, DevvStream and the Company shall obtain a background check and a completed directors & officers questionnaire with respect to any individual that will serve on the Post-Closing Company Board at the
Company’s expense.
(d) At or
prior to the Closing, the Company will provide each member of the Post-Closing Company Board with a customary director indemnification agreement.
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(a) Prior to
the Effective Date, Southern shall purchase customary non-cancellable and fully pre-paid “tail” policies of directors’ and officers’ liability, employment practices liability and fiduciary liability insurance providing protection no less
favorable in the aggregate to the protection provided by the policies maintained by Southern, as applicable, which are in effect immediately prior to the Effective Date and providing protection in respect of claims arising from facts or
events which occurred on or prior to the Effective Date; provided that the cost of such policies will not exceed 250% of the annual premiums currently in effect for such directors’ and officers’ liability, employment practices liability
and fiduciary liability coverage and that if such insurance coverage is unavailable, then as promptly as practicable following the Closing, the Company will, or if the cost of such a tail policy will exceed such amount, will cause
Southern to purchase such tail policies with the best available insurance coverage whose cost will not exceed 250% of the annual premiums currently in effect for such directors’ and officers’ liability, employment practices liability and
fiduciary liability coverage. The Company shall, or shall cause Southern to, continuously maintain such tail policies in full force and effect without any reduction in scope or coverage for six (6) years from the Effective Date and to
abide by their obligations thereunder.
(b) Prior to
the Effective Date, DevvStream shall purchase customary non-cancellable and fully pre-paid “tail” policies of directors’ and officers’ liability, employment practices liability and fiduciary liability insurance providing protection no
less favorable in the aggregate to the protection provided by the policies maintained by DevvStream, as applicable, which are in effect immediately prior to the Effective Date and providing protection in respect of claims arising from
facts or events which occurred on or prior to the Effective Date; provided that the cost of such policies will not exceed 250% of the annual premiums currently in effect for such directors’ and officers’ liability, employment practices
liability and fiduciary liability coverage and that if such insurance coverage is unavailable, then as promptly as practicable following the Closing, the Company will, or if the cost of such a tail policy will exceed such amount, will
cause DevvStream to purchase such tail policies with the best available insurance coverage whose cost will not exceed 250% of the annual premiums currently in effect for such directors’ and officers’ liability, employment practices
liability and fiduciary liability coverage. The Company shall, or shall cause DevvStream to, continuously maintain such tail policies in full force and effect without any reduction in scope or coverage for six (6) years from the
Effective Date and to abide by their obligations thereunder.
(c) From and
after the Effective Time, the Company shall, and shall cause Southern and DevvStream to, honor all rights to indemnification or exculpation now existing in favor of present and former officers and directors of the Company and its
Subsidiaries, Southern and DevvStream as of the date hereof (collectively, the “D&O Indemnified Persons”) to the extent they have been provided under applicable Law, the
Organizational Documents of such entities or under indemnification agreements made available as of the date hereof, and acknowledges that such rights shall survive the completion of the Transactions and shall continue in full force and
effect and shall not be amended in any manner adverse to the D&O Indemnified Persons for at least six (6) years following the Effective Date.
(d) The
provisions of this Section 8.15 are intended for the benefit of, and shall be enforceable by, each insured or D&O Indemnified Person, his or her heirs, estates and his or
her legal representatives.
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(e) If
Southern, DevvStream, the Company or any of their respective Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity
of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, proper provision shall be made so that any such successor or assign (including, as applicable, any acquirer of
substantially all of the properties and assets of Southern, DevvStream, the Company or any of their respective Subsidiaries) assumes all of the obligations set forth in this Section 8.15.
(a) During the Interim Period, as promptly as practicable after the date of this Agreement and in the case of Section 8.16(a)(x)(i) and Section 8.16(a)(x)(iii) below, in no event later than thirty (30) Business Days after the Signing Date, Southern shall deliver to the Company the following financial statements (such
financial statements, the “Required Financial Statements”): (x) (i) audited consolidated balance sheet of Southern as of September 30, 2025 and December 31, 2025, and the related
audited consolidated statements of comprehensive loss, cash flows and securityholders equity for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of Southern’s
independent auditors (which reports shall be unqualified) in each case audited in accordance with the standards of the PCAOB (the “PCAOB Financial Statements”); (ii) all other
audited and unaudited financial statements of Southern and any company or business units acquired by Southern, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Registration
Statement or the Closing Form 8-K (including pro forma financial information); and (iii) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the
Exchange Act (as if Southern was subject thereto) with respect to the periods described in clauses (i) and (ii)
above, as necessary for inclusion in the Registration Statement or the Closing Form 8-K (including pro forma financial information) and (y) within forty-five (45) calendar days following the end of each
three-month quarterly period and each fiscal year, an unaudited income statement and an unaudited balance sheet of Southern for the period from the Latest Balance Sheet Date through the end of such calendar month, quarterly period or
fiscal year and the applicable comparative period in the preceding fiscal year, in each case accompanied by a certificate of the Chief Financial Officer of Southern to the effect that all such financial statements fairly present the
financial position and results of operations of Southern as of the date or for the periods indicated, in accordance with GAAP, subject to year-end audit adjustments and excluding footnotes.
(b) Southern
shall use commercially reasonable efforts (i) to assist the Company and its Representatives, upon advance written notice, during normal business hours and in a manner such as to not unreasonably interfere with the normal operation of
Southern, in causing to be prepared in a timely manner any other financial information or statements (including customary pro forma financial statements) that is reasonably required to be included in the Registration Statement and any
other filings to be made by the Company with the SEC or any other Securities Authorities in connection with the Transactions and (ii) to obtain the consents of Southern’s auditors with respect thereto as may be required by applicable Law.
(c) The
Parties shall use commercially reasonable efforts to apply for exemptive relief to the extent the Parties reasonably determine that the Required Financial Statements do not sufficiently comply with prescribed requirements under Canadian
securities Laws requiring the inclusion of the Required Financial Statements or any other financial information or statements in respect of Southern in the DevvStream Circular or any other document to be filed by DevvStream under
National Instrument 51-102 Continuous Disclosure Obligations.
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(d) Southern
shall take all actions reasonably necessary for an independent auditor to not deliver a report on the Required Financial Statements containing an adverse opinion or a disclaimer of opinion. Prior to the Effective Time, Southern shall
not have identified and shall not have received written notice from an independent auditor of any fraud that involves Southern’s management or other employees have a role in the preparation of financial statements or any claim or
allegation of the regarding any of the foregoing.
(a) Subject to
Section 8.17(b), the Parties agree that DevvStream, in its reasonable discretion, shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to: (i)
effect such reorganizations of DevvStream’s or its Subsidiaries’ business, operations and assets or such other transactions as the Parties may reasonably determine, including amalgamations, continuances, wind-ups, distributions,
contributions, sales, intercompany loans or the refinancing thereof, and any other transaction (each a “Pre-Closing Reorganization”); (ii) cooperate with the Company, Southern
and their advisors in order to determine the nature of any Pre-Closing Reorganization that might be undertaken and the manner in which any Pre-Closing Reorganizations might most effectively be undertaken; and (iii) cooperate with the
Company, Southern and their advisors to seek to obtain any Consent which might be required from any third party in connection with any Pre-Closing Reorganization; provided, that
any Pre-Closing Reorganization, if elected to be undertaken by DevvStream, shall be subject to the Company’s and Southern’s prior written consent.
(b) DevvStream
will not be obligated to undertake any Pre-Closing Reorganization unless DevvStream, acting reasonably, determines that such Pre-Closing Reorganization:
(i) does not adversely affect the interests of DevvStream, any of its Subsidiaries or the DevvStream Shareholders in any material respect;
(ii) does not require DevvStream to obtain the approval of the DevvStream Shareholders;
(iii) does not impair, prevent or materially delay the consummation of the Domestication or the Mergers or the other Transactions;
(iv) is effected as closely as is reasonably practicable prior to the Effective Date;
(v) does not result in any breach by DevvStream or any of its Subsidiaries of any Contract, DevvStream’s Organizational Documents, the organizational documents or any applicable Subsidiary, or any applicable Law;
(vi) does not require DevvStream or its Subsidiaries to take any action that could reasonably be expected to result in Taxes being imposed on, or any adverse Tax or other consequences to, any DevvStream Shareholders greater than the
Taxes or other consequences to such party in connection with the completion of the Domestication and the Mergers in the absence of action being taken pursuant to this Section 8.17;
and
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(vii) shall not become effective unless the Company and Southern have irrevocably waived or confirmed in writing the satisfaction of all conditions to the Closing in their favor under this Agreement and shall have confirmed in
writing that they are prepared, and able to promptly and without condition proceed to effect the Closing.
(c) Upon the
delivery of its consent pursuant to Section 8.17(a), the Company and Southern shall be deemed to waive any breach of a representation, warranty or covenant by DevvStream
provided herein, where such breach is a result of an action taken by DevvStream or a Subsidiary is solely pursuant to a determination made by the Parties in accordance with this Section
8.17.
(d) If the
Company and Southern has delivered their consent pursuant to Section 8.17(a), the Parties shall work co-operatively and use commercially reasonable efforts to determine any
proposed Pre-Closing Reorganization at least 15 Business Days prior to the Effective Date and to prepare prior to the Effective Date all documentation necessary and do all such other acts and things as are reasonably necessary,
including making amendments to this Agreement (provided that such amendments do not require DevvStream to obtain approval of DevvStream Shareholders (other than as properly put
forward and approved at the DevvStream Meeting)), to give effect to such Pre-Closing Reorganization.
(a) The Company
shall use commercially reasonable efforts to invest Ten Million Dollars ($10,000,000) (the “Conversion Investment”) into the buildout and conversion of the Company’s New Rise
Reno facility for the production of Sustainable Aviation Fuel and blending with Jet A at maximum blend off-take capacity (the “Plant Conversion”). The Company shall allocate and
use not less than Five Hundred Thousand Dollars ($500,000) of the Conversion Investment for marketing, publicity, and other investor relations activities relating to the Plant Conversion. The balance of the Conversion Investment shall be
utilized for the Plant Conversion and required general corporate purposes of the Company during the conversion period.
(b) The
Parties acknowledge that the Plant Conversion is being funded through the issuance of Company Common Shares to EEME Energy SPV I LLC (“EEME”) pursuant to that certain transaction
term sheet dated January 25, 2026 (the “Term Sheet”) and the schedule set forth below (the “Plant Conversion Funding”).
The Company and EEME acknowledge that (i) the Company has previously issued 7,000,000 Company Common Shares to EEME in exchange for Seven Hundred Thousand Dollars ($700,000), and (ii) the Company has issued 31,000,000 Company Common
Shares to EEME in exchange for Three Million One Hundred Thousand Dollars ($3,100,000). The Parties agree that the remaining balance of the Plant Conversion Funding shall be consummated as follows:
(i) Prior to March 31, 2026, subject to Section 8.18(c), the Company shall issue an additional 62,000,000 Company Common Shares to EEME in exchange for Six Million Two
Hundred Thousand Dollars ($6,200,000), payable in equal installments of Three Million One Hundred Thousand Dollars ($3,100,000) during the following weeks: (A) the week of March 7, 2026; and (B) the week of March 31, 2026.
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(ii) Each funding date set forth in this Section 8.18(b) shall be subject to a two (2) Business Day grace period.
(c) Notwithstanding
anything to the contrary in this Section 8.18, the Company shall not issue to EEME, and EEME shall not acquire, pursuant to this Section
8.18 or the Term Sheet: (i) more than 41,639,170 Company Common Shares; or (ii) a number of Company Common Shares that would result in EEME becoming, directly or indirectly, a “beneficial owner” (within the meaning of
Section 13(d) of the Exchange Act) of more than 19.99% of the issued and outstanding Company Common Shares (the “Share Cap”), until such time as the Company has obtained the
approval of the Company Shareholders for such issuance in excess of the Share Cap.
8.19
Asset Spin. The Company, DevvStream and XCF agree to use their commercially reasonable efforts to, if mutually
desirable, agree on a reasonable structure to spin-out or sell a newly formed, publicly listed holding company shell of DevvStream immediately following the Closing (after DevvStream, as the current operating company, has been acquired by
the Company) on commercially reasonable terms (the “Shell Spin-Out”); provided, however, that any such Shell Spin-Out
shall not (i) result in any adverse economic, tax, or legal consequences to the Company or Southern, or (ii) cause any material delay in the consummation of the Transactions contemplated by this Agreement. The Company, DevvStream and XCF
shall use their commercially reasonable efforts to amend this Agreement to reflect such terms. The Company and XCF acknowledge and agree that DevvStream may elect to not pursue such Shell Spin-Out in its reasonable discretion; provided, further, that any expenses related to the Shell Spin-Out shall be deducted from the proceeds thereof that go to the DevvStream Shareholders.
8.20 SAF Offtake Agreement. Southern and the Company shall each use commercially reasonable efforts to negotiate and enter into a long-term
offtake agreement pursuant to which the Company shall act as the purchaser and offtake counterparty for Sustainable Aviation Fuel produced by Southern (the “SAF Offtake Agreement”)
and to make a public announcement regarding the execution of such SAF Offtake Agreement.
8.21 Non-SAF Offtake Agreements. Southern shall use commercially reasonable efforts to negotiate and enter into one or more offtake agreements
with European buyers pursuant to which such buyers shall act as the purchasers and offtake counterparties for the products produced by Southern other than Sustainable Aviation Fuel (the “European
Offtake Agreements”).
9.1 No Survival. None of the representations, warranties,
covenants or agreements set forth herein or in any certificate or instrument delivered by or on behalf of any Party pursuant to this Agreement including any rights arising out of any breach of such representations, warranties, covenants or
agreements, shall survive the Closing (and there shall be no Liability after the Closing in respect thereof), in each case, except for those covenants and agreements that by their terms apply or are to be performed, in each case, in whole
or in part after the Closing (which such covenants shall survive the Closing and continue until fully performed in accordance with their terms). Notwithstanding anything to the contrary contained herein, none of the provisions set forth
herein shall be deemed a waiver by any Party of any right or remedy which such Party may have at Law or in equity in the case of Fraud.
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ARTICLE X
The obligations of each Party to consummate the Mergers and the other Transactions, shall be subject to the
satisfaction or written waiver (where permissible) by the Company, DevvStream and Southern of the following conditions:
(a) Required Company Shareholder Approval. The Company Resolutions shall have been authorized and adopted by the Company Shareholders at the Company Meeting in
accordance with applicable Law (together, the “Required Company Shareholder Approval”).
(b) Required DevvStream Shareholder Approval. The Required DevvStream Shareholder Approval shall have been obtained.
(c) No Orders or Illegality. No Law is in effect that makes the consummation of the Domestication or the Mergers illegal or otherwise prohibits or enjoins any Party or its affiliates
from consummating the Domestication or the Mergers and no Law or Order is in effect that makes the consummation of the Domestication or the Mergers illegal or otherwise prohibits or enjoins any Party or its affiliates from consummating
the Domestication or the Mergers or any other Transactions.
(d) Regulatory Approvals. Each of the Required Regulatory Approvals shall have been made, given or obtained (or the termination of any such waiting period has occurred) on terms
satisfactory to the Parties, each acting reasonably, and each such Required Regulatory Approval shall be in full force and effect.
(e) Stock Exchange Listing. The Stock Exchange Approvals shall have been made, given or obtained, on terms satisfactory to the Parties, subject only to the customary listing conditions
of Nasdaq and Nasdaq Sweden, as applicable.
(f) Registration Statement. The Registration Statement shall have been declared effective by the SEC and shall remain effective as of the Closing, and no stop order or similar order
shall be in effect with respect to the Registration Statement.
(g) Governance. The actions required to be taken by the Parties pursuant to Section 8.14, with effect as of and from the
Effective Time, shall have been taken.
(h) Domestication. The Domestication shall have been completed and a time-stamped copy of the Certificate of Domestication issued by the Secretary of State of the State of Delaware in
relation thereto shall have been delivered to Southern.
(i) Dissent. If legally available, dissent rights have not been exercised with respect to more than three percent (3%) of the issued and outstanding Company Common Stock or DevvStream
Shares.
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In addition to the conditions specified in Section 10.1,
the obligations of the Company and the Merger Subs to consummate the Mergers and the other Transactions, are subject to the satisfaction or written waiver (by the Company) of the following conditions:
(i) Each of the representations and warranties of Southern, contained in Section 4.1 (Organization and Standing), Section 4.2 (Authorization; Binding
Agreement), Section 4.28 (Finders and Brokers), (collectively, the “Southern Specified Representations”) shall be
true and correct (A) in the case of any such representation or warranty that is qualified by “materiality” or “Material Adverse Effect” or any similar limitation therein, in all respects, or (B) in the case of any such representation or
warranty that is not qualified by “materiality” or “Material Adverse Effect” or any similar limitation therein, in all material respects, in each case, as of the date of this Agreement and on and as of the Closing Date immediately prior
to the Effective Time as if made on the Closing Date immediately prior to the Effective Time (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be so true and correct on
and as of such earlier date).
(ii) Each of the representations and warranties of Southern, contained in Article IV (other than Southern Specified
Representations and the representations and warranties of Southern contained in Section 4.5 (Capitalization)) shall be true and correct (without
giving any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) as of the date of this Agreement and on and as of the Closing Date immediately prior to the Effective Time
as if made on the Closing Date immediately prior to the Effective Time (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier
date), except, in each case, the failure of such representations and warranties to be so true and correct, has not had a Southern Material Adverse Effect.
(iii) The representations and warranties of Southern, contained in Section 4.5 (Capitalization) shall be true and correct, except for any de minimis failures to be so true and correct, as of the date of this Agreement and on and as of the Closing Date as if made on
the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct, except for any de minimis failures to be so true and correct, on and as of such
earlier date).
(iv) Each of the representations and warranties of DevvStream contained in Section 6.1 (Organization and Standing), Section 6.2 (Authorization; Binding Agreement),
and Section 6.29 (Finders and Brokers) (collectively, the “DevvStream Specified Representations”) shall be true and correct (A) in the case of any such representation or warranty that is qualified by “materiality” or “Material Adverse Effect” or any similar limitation
therein, in all respects, or (B) in the case of any such representation or warranty that is not qualified by “materiality” or “Material Adverse Effect” or any similar limitation therein, in all material respects, in each case, as of the
date of this Agreement and on and as of the Closing Date immediately prior to the Effective Time as if made on the Closing Date immediately prior to the Effective Time (except to the extent such representations and warranties expressly
relate to an earlier date, and in such case, shall be so true and correct on and as of such earlier date).
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(v) Each of the representations and warranties of DevvStream contained in Article VI (other than DevvStream Specified Representations and the representations and
warranties of DevvStream contained in Section 6.5 (Capitalization)) shall be true and correct (without
giving any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) as of the date of this Agreement and on and as of the Closing Date immediately prior to the Effective Time
as if made on the Closing Date immediately prior to the Effective Time (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier
date), except, in each case, the failure of such representations and warranties to be so true and correct, has not had a DevvStream Material Adverse Effect.
(vi) The representations and warranties of DevvStream contained in Section 6.5 (Capitalization)
shall be true and correct, except for any de minimis failures to be so true and correct, as of the date of this Agreement and on and as of the Closing Date as if made on the Closing Date (except to the extent such representations and
warranties expressly relate to an earlier date, and in such case, shall be true and correct, except for any de minimis failures to be so true and correct, on and as of such earlier date)."
(b) Agreements and Covenants. Each of Southern and DevvStream shall have performed in all material respects all of its obligations and complied in all material respects with all of its
agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date, except where compliance with any such obligation, agreement or covenant has been waived in writing by the Company.
(c) No Material Adverse Effect. No Southern Material Adverse Effect and no DevvStream Material Adverse Effect shall have occurred since the date of this Agreement which is continuing and
uncured.
(d) Plant Conversion Funding. Southern shall have caused the Plant Conversion Funding to have occurred.
(e) Southern Bond Issuance. Southern shall have (i) been approved by the State of Louisiana to issue bonds in an aggregate principal amount of at least Four Hundred Million Dollars
($400,000,000) (the “Bond Offering”), and a press conference with, or press release by, officials from the State of Louisiana relating to such bond issuance shall have occurred
or been issued, and (ii) completed an engagement with an investment bank to sell the Bond Offering and shall be in an acceptable process of procuring such bonds as it relates to the issuing authority.
(f) Minimum Southern Capitalization. The aggregate amount of (i) Southern's unrestricted cash and cash equivalents reflected on its unaudited consolidated balance sheet as of
immediately prior to the Effective Time, plus (ii) all Plant Conversion Funding funded to the Company prior to the Effective Time (including the $3,800,000 in
cash previously funded and deployed by Southern prior to the Signing Date), shall be equal to or greater than $10,000,000.
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(g) Southern Ownership. EEME shall have beneficial ownership of at least a majority of the outstanding Southern Shares as of the Effective Time.
(h) SAF Offtake Agreement. Southern shall have entered into the SAF Offtake Agreement.
(i) Non-SAF Offtake Agreements. Southern shall have entered into one or more European Offtake Agreements.
(j) Closing Deliverables.
(i) OFFICER CERTIFICATES. The Company shall have received a certificate from Southern and DevvStream, dated as of the Closing Date, signed by an executive officer or authorized signatory of Southern and DevvStream, as applicable, in
such capacity, certifying as to the satisfaction of the conditions specified in Sections 10.2(a), 10.2(b) and 10.2(c), as applicable.
(ii) FIRPTA TAX CERTIFICATES. Prior to the Closing, Southern and DevvStream shall deliver to the Company a properly executed certification, dated as of the Closing Date, that meets the requirements of U.S. Treasury Regulations
Sections 1.897-2(h) and 1.1445-2(c)(3), certifying that Southern and DevvStream, respectively, are not and have not been a “United States real property holding corporation” (as defined in Section 897(c)(2) of the Code) during the
applicable period specified in Section 897(c)(1)(A)(ii) of the Code, together with the required notices to the IRS and written authorization for Southern and DevvStream to deliver such notice and a copy of such certification to the IRS on
behalf of Southern and DevvStream upon the Closing.
In addition to the conditions specified in Section 10.1,
the obligations of Southern to consummate the Mergers and the other Transactions, are subject to the satisfaction or written waiver (by Southern) of the following conditions:
(i) Each of the representations and warranties of the Company and the Merger Subs, as applicable, contained in Section 5.1 (Organization and Standing), Section 5.2 (Authorization;
Binding Agreement) and Section 5.10 (Finders and Brokers), Section 7.1 (Organization and Standing), Section 7.2 (Authorization; Binding Agreement) and Section 7.29 (Finders and Brokers) (collectively, the “Company Specified Representations”) shall be true and correct (A) in the case of any such representation or warranty
that is qualified by “materiality” or “Material Adverse Effect” or any similar limitation therein, in all respects, or (B) in the case of any such representation or warranty that is not qualified by “materiality” or “Material Adverse
Effect” or any similar limitation therein, in all material respects, in each case, as of the date of this Agreement and on and as of the Closing Date immediately prior to the Effective Time as if made on the Closing Date immediately prior
to the Effective Time (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date).
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(ii) Each of the representations and warranties of the Company and the Merger Subs contained in Article V and Article VII (other than the Company Specified Representations and the representations and warranties of the Merger Subs contained in Section 5.5
(Capitalization) and of the Company contained in Section 7.5 (Capitalization)) shall be true and correct (without giving any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) as of the date of
this Agreement and on and as of the Closing Date immediately prior to the Effective Time as if made on the Closing Date immediately prior to the Effective Time (except to the extent such representations and warranties expressly relate to
an earlier date, and in such case, shall be true and correct on and as of such earlier date), except, in each case, the failure of such representations and warranties to be so true and correct, has not had a Company Material Adverse
Effect or Merger Sub Material Adverse Effect, as applicable.
(iii) The representations and warranties of the Company and the Merger Subs contained in Section 5.5 (Capitalization) and Section 7.5 (Capitalization) shall be true and
correct, except for any de minimis failures to be so true and correct, as of the date of this Agreement and on and as of the Closing Date as if made on the Closing Date (except to the extent such representations and warranties expressly
relate to an earlier date, and in such case, shall be true and correct, except for any de minimis failures to be so true and correct, on and as of such earlier date).
(iv) Each of the representations and warranties of DevvStream contained in Section 6.1 (Organization and
Standing), Section 6.2 (Authorization; Binding Agreement), and Section 6.29 (Finders and Brokers) (collectively, the “DevvStream Specified
Representations”) shall be true and correct (A) in the case of any such representation or warranty that is qualified by “materiality” or “Material Adverse Effect” or any similar limitation therein, in all respects, or (B)
in the case of any such representation or warranty that is not qualified by “materiality” or “Material Adverse Effect” or any similar limitation therein, in all material respects, in each case, as of the date of this Agreement and on
and as of the Closing Date immediately prior to the Effective Time as if made on the Closing Date immediately prior to the Effective Time (except to the extent such representations and warranties expressly relate to an earlier date, and
in such case, shall be so true and correct on and as of such earlier date).
(v) Each of the representations and warranties of DevvStream contained in Article VI (other than the DevvStream Specified Representations and the representations and
warranties of DevvStream contained in Section 6.5 (Capitalization)) shall be true and correct (without
giving any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) as of the date of this Agreement and on and as of the Closing Date immediately prior to the Effective Time
as if made on the Closing Date immediately prior to the Effective Time (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier
date), except, in each case, the failure of such representations and warranties to be so true and correct, has not had a DevvStream Material Adverse Effect.
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(vi) The representations and warranties of DevvStream contained in Section 6.5 (Capitalization)
shall be true and correct, except for any de minimis failures to be so true and correct, as of the date of this Agreement and on and as of the Closing Date as if made on the Closing Date (except to the extent such representations and
warranties expressly relate to an earlier date, and in such case, shall be true and correct, except for any de minimis failures to be so true and correct, on and as of such earlier date).
(b) Agreements and Covenants. The Company, Merger Subs and DevvStream shall have performed in all material respects all of their respective obligations and complied in all material
respects with all of their respective agreements and covenants under this Agreement, in each case to be performed or complied with by such Person on or prior to the Closing Date, except where compliance with any such obligation, agreement
or covenant has been waived in writing by Southern.
(c) No Material Adverse Effect. No Company Material Adverse Effect, Merger Sub Material Adverse Effect or DevvStream Material Adverse Effect shall have occurred since the date of this
Agreement which is continuing and uncured.
(d) SAF Offtake Agreement. The Company shall have entered into the SAF Offtake Agreement and shall have made a public announcement regarding the execution thereof.
(i) OFFICER CERTIFICATE. Southern shall have received a certificate from the Company, Merger Subs and DevvStream, dated as of the Closing Date, signed by an executive officer or authorized signatory of the Company, Merger Subs and
DevvStream, as applicable, in such capacity, certifying as to the satisfaction of the conditions specified in Section 10.3(a), Section
10.3(b) and Section 10.3(c), as applicable.
In addition to the conditions specified in Section 10.1,
the obligations of DevvStream to consummate the Mergers and the other Transactions are subject to the satisfaction or written waiver (by DevvStream) of the following conditions:
(i) Each of the Company Specified Representations shall be true and correct (A) in the case of any such representation or warranty that is qualified by “materiality” or “Material Adverse Effect” or any similar limitation therein,
in all respects, or (B) in the case of any such representation or warranty that is not qualified by “materiality” or “Material Adverse Effect” or any similar limitation therein, in all material respects, in each case, as of the date of
this Agreement and on and as of the Closing Date immediately prior to the Effective Time as if made on the Closing Date immediately prior to the Effective Time (except to the extent such representations and warranties expressly relate
to an earlier date, and in such case, shall be true and correct on and as of such earlier date).
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(ii) Each of the representations and warranties of the Company and the Merger Subs contained in Article V and Article VII
(other than the Company Specified Representations and the representations and warranties of the Merger Subs contained in Section 5.5 (Capitalization) and of the Company contained in Section 7.5 (Capitalization))
shall be true and correct (without giving any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) as of the date of this Agreement and on and as of the Closing Date
immediately prior to the Effective Time as if made on the Closing Date immediately prior to the Effective Time (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be
true and correct on and as of such earlier date), except, in each case, the failure of such representations and warranties to be so true and correct, has not had a Company Material Adverse Effect or Merger Sub Material Adverse Effect,
as applicable.
(iii) The representations and warranties of the Company and the Merger Subs contained in Section 5.5 (Capitalization)
and Section 7.5 (Capitalization) shall be true and correct, except for any de minimis failures to be
so true and correct, as of the date of this Agreement and on and as of the Closing Date as if made on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, and in such case,
shall be true and correct, except for any de minimis failures to be so true and correct, on and as of such earlier date).
(iv) Each of the Southern Specified Representations shall be true and correct (A) in the case of any such representation or warranty that is qualified by “materiality” or “Material Adverse Effect” or any similar limitation therein,
in all respects, or (B) in the case of any such representation or warranty that is not qualified by “materiality” or “Material Adverse Effect” or any similar limitation therein, in all material respects, in each case, as of the date of
this Agreement and on and as of the Closing Date immediately prior to the Effective Time as if made on the Closing Date immediately prior to the Effective Time (except to the extent such representations and warranties expressly relate
to an earlier date, and in such case, shall be so true and correct on and as of such earlier date).
(v) Each of the representations and warranties of Southern contained in Article IV (other than Southern Specified Representations and the representations and warranties
of Southern contained in Section 4.5 (Capitalization)) shall be true and correct (without giving any
effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) as of the date of this Agreement and on and as of the Closing Date immediately prior to the Effective Time as if made
on the Closing Date immediately prior to the Effective Time (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date),
except, in each case, the failure of such representations and warranties to be so true and correct, has not had a Southern Material Adverse Effect.
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(vi) The representations and warranties of Southern contained in Section 4.5 (Capitalization)
shall be true and correct, except for any de minimis failures to be so true and correct, as of the date of this Agreement and on and as of the Closing Date as if
made on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct, except for any de minimis failures to be so true and correct, on and as of such earlier date).
(b) Agreements and Covenants. Each of the Company, Merger Subs and Southern shall have performed in all material respects all of their respective obligations and complied in all material
respects with all of their respective agreements and covenants under this Agreement, in each case to be performed or complied with by such Person on or prior to the Closing Date, except where compliance with any such obligation, agreement
or covenant has been waived in writing by DevvStream.
(c) No Material Adverse Effect. No Company Material Adverse Effect, Merger Sub Material Adverse Effect or Southern Material Adverse Effect shall have occurred since the date of this
Agreement which is continuing and uncured.
(d) Plant Conversion Funding. Southern shall have caused the Plant Conversion Funding to have occurred.
(e) Southern Bond Issuance. Southern shall have (i) been approved by the State of Louisiana to issue bonds in an aggregate principal amount of at least Four Hundred Million Dollars
($400,000,000) (the “Bond Offering”), and a press conference with, or press release by, officials from the State of Louisiana relating to such bond issuance shall have occurred
or been issued, and (ii) completed an engagement with an investment bank to sell the Bond Offering and shall be in an acceptable process of procuring such bonds as it relates to the issuing authority.
(f) SAF Offtake Agreement. The Company and Southern shall have entered into the SAF Offtake Agreement.
(g) Non-SAF Offtake Agreements. Southern shall have entered into one or more European Offtake Agreements.
(h) Company Revenue and EBITDA. In any calendar month prior to the Closing Date, the gross revenue of the Company for its blended fuel product shall exceed $1,000,000,000 on an
annualized, go-forward basis no later than June 30, 2026 and the annualized EBITDA shall equal at least $100,000,000 on an annualized, go forward basis.
(i) Minimum Southern Capitalization. The aggregate amount of (i) Southern's unrestricted cash and cash equivalents reflected on its unaudited consolidated balance sheet as of immediately
prior to the Effective Time, plus (ii) the $3,800,000 in cash previously funded and deployed by Southern prior to the Closing Date, shall be equal to or greater
than $10,000,000. This Section 10.4(i) shall be subject to the requirements of Section 8.3.
(j) Southern Ownership. EEME shall have beneficial ownership of at least a majority of the outstanding Southern Shares as of the Effective Time.
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(k) Closing Deliverables.
(i) OFFICER CERTIFICATE. DevvStream shall have received a certificate from the Company, Merger Subs and Southern, dated as of the Closing Date, signed by an executive officer or authorized signatory of the Company, Merger Subs and
Southern, as applicable, in such capacity, certifying as to the satisfaction of the conditions specified in Sections 10.4(a), 10.4(b)
and 10.4(c), as applicable.
10.5 Frustration of Conditions. Notwithstanding anything
contained herein to the contrary, no Party may rely on the failure of any condition set forth in this Article X to be satisfied if such failure was caused by the failure of such
Party or its Affiliates (or with respect to the Company or any Company Shareholder) to comply with or perform any of its covenants or obligations set forth in this Agreement.
ARTICLE XI
This Agreement may be terminated, and the Transactions may be abandoned at any time prior to the Closing as follows:
(i) the Company Meeting is duly convened and held (including any adjournment or postponement thereof), the Company Shareholders have duly voted, and the Required Company Shareholder Approval was not obtained;
(ii) the DevvStream Meeting is duly convened and held (including any adjournment or postponement thereof), the DevvStream Shareholders have duly voted, and the Required DevvStream Shareholder Approval was not obtained;
(iii) after the date of this Agreement, any Law is enacted, made, enforced or amended, as applicable, that makes the consummation of the Transactions illegal or otherwise prohibits or enjoins the Company,
DevvStream or Southern or their respective affiliates from consummating the Transactions, and such Law has, if applicable, become final and non-appealable; provided, that the
Party seeking to terminate this Agreement pursuant to this Section 11.1(b)(iii) has used its commercially reasonable efforts to, as applicable, appeal or overturn such Law or
otherwise have it lifted or rendered non-applicable in respect of the Merger and the other Transactions; or
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(iv) the Effective Time does not occur on or prior to the date that is the ten (10) month anniversary of the date hereof, subject to a one-time thirty (30)-day extension upon written agreement of the
Parties (provided, that, if the Registration Statement shall not have been declared effective by the SEC as of the Outside Date, Southern, DevvStream and the Company shall each
be entitled to one sixty (60)-day extension upon notice to the other) (such date, as applicable, the “Outside Date”), provided,
that a Party may not terminate this Agreement pursuant to this Section 11.1(b)(iv) if the
failure of the Effective Time to so occur has been caused by, or is a result of, a breach by such Party of any of its representations or warranties or the failure of such Party to perform any of its covenants or agreements under this
Agreement.
(i) there has been a breach of any covenant or agreement by the Company, Southern or Merger Subs or if any representation or warranty of the Company, Southern or Merger Subs, shall have become untrue or inaccurate, in any case which
would result in a failure of a condition set forth in Section 10.4(a) or Section 10.4(b) to be satisfied (treating
the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) thirty (30) Business Days after
written notice of such breach or inaccuracy is provided to DevvStream by the Company or Southern, as applicable or (B) the Outside Date; provided, that DevvStream shall not have
the right to terminate this Agreement pursuant to this Section 11.1(c)(i) if at such time DevvStream is in material uncured breach of this Agreement;
(ii) prior to the approval by the DevvStream Shareholders of the Mergers, DevvStream enters into a written agreement with respect to a Superior Proposal in accordance with Section 8.8
and provided, that DevvStream is then in compliance with Section 8.8;
(iii) prior to the approval by the Company Shareholders of the Merger, (A) the Company Board or Company Special Committee effect a Company Change in Recommendation (it being understood that publicly taking no position or a neutral
position with respect to an Acquisition Proposal for a period of no more than five (5) Business Days after the formal announcement thereof shall not be considered a Company Change in Recommendation) unless the Company provides a Superior
Proposal Notice to DevvStream within such timeframe, in which case the Company will have until the end of the Matching Period to reaffirm the Company Board Recommendation, or (B) the Company Board or the Company Special Committee
approves, recommends or authorizes the Company to enter into a written agreement concerning a Superior Proposal;
(iv) if there has been a Company Material Adverse Effect following the date of this Agreement which is incapable of being cured or is not cured within the earlier of (A) thirty (30) Business Days after written notice of such Company
Material Adverse Effect is provided to DevvStream by the Company or (B) the Outside Date;
(v) if there has been a Southern Material Adverse Effect following the date of this Agreement which is incapable of being cured or is not cured within the earlier of (A) thirty (30) Business Days after written notice of such
Southern Material Adverse Effect is provided to DevvStream by Southern or (B) the Outside Date; or
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(vi) if the DevvStream Board and DevvStream Special Committee does not receive the DevvStream Fairness Opinion within twenty (20) Business Days of the date hereof; provided,
that DevvStream's right to terminate this Agreement pursuant to this Section 11.1(c)(vi) shall expire if such right is not exercised within two (2) Business Days following the
end of such twenty (20) Business Day period.
(i) there has been a breach of any covenant or agreement by the Company, DevvStream or Merger Subs or if any representation or warranty of the Company, DevvStream or Merger Subs, shall have become
untrue or inaccurate, in any case which would result in a failure of a condition set forth in Section 10.3(a)
or Section 10.3(b) to be satisfied (treating the Closing Date for such purposes as the date of
this Agreement or, if later, the date of such breach), and the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) thirty (30) Business Days after written notice of such breach or inaccuracy is
provided to Southern by the Company or DevvStream, as applicable or (B) the Outside Date; provided, that Southern shall not have the right to terminate this Agreement pursuant
to this Section 11.1(d)(i) if at such time Southern is in material uncured breach of this
Agreement;
(ii) prior to the approval by the Company Shareholders of the Mergers, (A) the Company Board or the Company Special Committee fail to unanimously recommend, withdraws, amends, modifies or qualifies in a
manner that has substantially the same effect, or fails to publicly reaffirm within five (5) Business Days after having been requested in writing to do so by Southern or DevvStream, acting reasonably, the approval or recommendation of the
Transactions (a “Company Change in Recommendation”) (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a
period of no more than five (5) Business Days after the formal announcement thereof shall not be considered a Company Change in Recommendation) unless the Company provides a Superior Proposal Notice to Southern within such timeframe, in
which case the Company will have until the end of the Matching Period to reaffirm the Company Board Recommendation, or (B) the Company Board or the Company Special Committee approves, recommends or authorizes the Company to enter into a
written agreement concerning a Superior Proposal;
(iii) prior to the approval by the DevvStream Shareholders of the Merger, (A) the DevvStream Board or the DevvStream Special Committee effects a
DevvStream Change in Recommendation (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no more than five (5) Business Days after the formal announcement
thereof shall not be considered a DevvStream Change in Recommendation) unless DevvStream provides a Superior Proposal Notice to Southern within such timeframe, in which case DevvStream will have until the end of the Matching Period to
reaffirm the DevvStream Board Recommendation, or (B) the DevvStream Board or the DevvStream Special Committee approves, recommends or authorizes DevvStream to enter into a written agreement concerning a Superior Proposal;
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(iv) if there has been a Company Material Adverse Effect following the date of this Agreement which is incapable of being cured or is not cured within the earlier of (A) thirty (30) Business Days after written notice of such Company
Material Adverse Effect is provided to Southern by the Company or (B) the Outside Date; or
(v) if there has been a DevvStream Material Adverse Effect following the date of this Agreement which is incapable of being cured or is not cured within the earlier of (A) thirty (30) Business Days after written notice of such
DevvStream Material Adverse Effect is provided to Southern by DevvStream or (B) the Outside Date.
(e) by
written notice by the Company to Southern and DevvStream, if:
(i) there has been a breach of any covenant or agreement by Southern or DevvStream, or if any representation or warranty of Southern or DevvStream, shall have become untrue or inaccurate, in any case
which would result in a failure of a condition set forth in Section 10.2(a) or Section 10.2(b) to be satisfied (treating the Closing Date for such purposes as the date of this
Agreement or, if later, the date of such breach), and the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) thirty (30) Business Days after written notice of such breach or inaccuracy is provided
to the Company by Southern or DevvStream, as applicable or (B) the Outside Date; provided, that the Company shall not have the right to terminate this Agreement pursuant to this
Section 11.1(e)(i) if at such time the Company or Merger Subs are in material uncured breach of
this Agreement;
(ii)
prior to the approval by the Company Shareholders of the Mergers, the Company enters into a written agreement with respect to a
Superior Proposal in accordance with Section 8.8 and provided, that the Company is then in compliance with Section 8.8;
(iii) prior to the approval by the DevvStream Shareholders of the Merger, (A) the DevvStream Board or the DevvStream Special Committee fail to unanimously recommend, withdraws, amends, modifies or qualifies in a manner that has
substantially the same effect, or fails to publicly reaffirm within five (5) Business Days after having been requested in writing to do so by Southern or the Company, acting reasonably, the approval or recommendation of the Transactions
(a “DevvStream Change in Recommendation”) (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no
more than five (5) Business Days after the formal announcement thereof shall not be considered a DevvStream Change in Recommendation) unless DevvStream provides a Superior Proposal Notice to the Company within such timeframe, in which
case DevvStream will have until the end of the Matching Period to reaffirm the DevvStream Board Recommendation, or (B) the DevvStream Board or the DevvStream Special Committee approves, recommends or authorizes DevvStream to enter into a
written agreement concerning a Superior Proposal;
(iv) if there has been a Southern Material Adverse Effect following the date of this Agreement which is incapable of being cured or is not cured within the earlier of (A) thirty (30) Business Days after written notice of such Southern
Material Adverse Effect is provided by Southern to the Company or (B) the Outside Date; or
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(v) if there has been a DevvStream Material Adverse Effect following the date of this Agreement which is incapable of being cured or is not cured within the earlier of (A) thirty (30) Business Days after written notice of such
DevvStream Material Adverse Effect is provided by DevvStream to the Company or (B) the Outside Date.
(vi) If the Company Board and Company Special Committee does not receive the Company Fairness Opinion within twenty (20) Business Days of the date hereof; provided, that the
Company's right to terminate this Agreement pursuant to this Section 11.1(e)(vi) shall expire if such right is not exercised within two (2) Business Days following the end of
such twenty (20) Business Day period.
(a) This
Agreement may only be terminated in the circumstances described in Section 11.1 and pursuant to a written notice delivered by the applicable Party to the other applicable
Parties, which sets forth the basis for such termination, including the provision of Section 11.1 under which such termination is made. In the event of the valid termination
of this Agreement pursuant to Section 11.1, this Agreement shall forthwith become void, and there shall be no Liability on the part of any Party or any of their respective
Representatives, and all rights and obligations of each Party shall cease, except: (i) Section 1.7 (Announcement
and Shareholder Communications), this Section 11.2 (Effect of Termination), Section 11.3 (Fees and Expenses), Article XII (Miscellaneous) and Section 12.3 (Third Parties) shall survive the termination of this Agreement, and (ii)
nothing herein shall relieve any Party from Liability following the termination of this Agreement for any Willful Breach of any representation, warranty, covenant or obligation under this Agreement or any Fraud Claim against such Party,
in either case, prior to termination of this Agreement (in each case of clauses (i) and (ii) above). For purposes of this Agreement, “Willful Breach” means a breach that is a
consequence of an act or omission undertaken by the breaching party with the Knowledge that the taking of or the omission of taking such act would cause or constitute a material breach of this Agreement.
(i) If (A) this Agreement is validly terminated (1) by Southern, DevvStream or the Company pursuant to Section 11.1(b)(ii) (No DevvStream Shareholder Approval), (2) by
Southern, DevvStream or the Company pursuant to Section 11.1(b)(iv) (Outside Date), or (3) by the Company pursuant to Section
11.1(e)(i) or by Southern pursuant to Section 11.1(d)(i) (in each case, with respect to a breach of any covenant or agreement by DevvStream or any representation
or warranty of DevvStream becoming untrue or inaccurate), (B) following the execution and delivery of this Agreement an Acquisition Proposal with respect to DevvStream was publicly disclosed or made known to DevvStream prior to such
termination and (C) concurrently with or within 12 months after the date of any such termination, (x) DevvStream or any DevvStream Subsidiary enters into a definitive agreement to effect any Acquisition Proposal or (y) any Acquisition
Proposal with respect to DevvStream is consummated, then DevvStream shall, subject to Section 11.3(c), pay to the Company the DevvStream Termination Fee concurrently with the
consummation of such Acquisition Proposal.
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(ii) If this Agreement is validly terminated by the Company pursuant to Section 11.1(e)(iii) or by Southern pursuant to Section
11.1(d)(iii) (DevvStream Change in Recommendation), then DevvStream shall pay to the Company the DevvStream Termination Fee within two Business Days after the date of such termination.
(iii) If this Agreement is validly terminated by DevvStream pursuant to Section 11.1(c)(ii) (DevvStream Superior Proposal), DevvStream shall, as a condition to such
termination, pay to the Company or its designee the DevvStream Termination Fee prior to, or concurrently with, the effectiveness of such termination.
(iv) If (A) this Agreement is validly terminated (1) by Southern, DevvStream or the Company pursuant to Section 11.1(b)(i) (No Company Shareholder Approval), (2) by
Southern, DevvStream or the Company pursuant to Section 11.1(b)(iv) (Outside Date), or (3) by DevvStream pursuant to Section
11.1(c)(i) or by Southern pursuant to Section 11.1(d)(i) (in each case, with respect to a breach of any covenant or agreement by the Company or any
representation or warranty of the Company becoming untrue or inaccurate), (B) following the execution and delivery of this Agreement an Acquisition Proposal with respect to the Company was publicly disclosed or made known to the Company
prior to such termination and (C) concurrently with or within 12 months after the date of any such termination, (x) the Company or any Company Subsidiary enters into a definitive agreement to effect any Acquisition Proposal or (y) any
Acquisition Proposal with respect to the Company is consummated, then the Company shall, subject to Section 11.3(c), pay to DevvStream the Company DevvStream Termination Fee
and to Southern the Company Southern Termination Fee concurrently with the consummation of such Acquisition Proposal.
(v) If this Agreement is validly terminated by DevvStream pursuant to Section 11.1(c)(iii) or by Southern pursuant to Section
11.1(d)(ii) (Company Change in Recommendation), then the Company shall pay to DevvStream the Company DevvStream Termination Fee and to Southern the Company Southern Termination Fee within two Business Days after the date
of such termination.
(vi) If this Agreement is validly terminated by the Company pursuant to Section 11.1(e)(ii) (Company Superior Proposal), the Company shall, as a condition to such
termination, pay to DevvStream the Company DevvStream Termination Fee and to Southern the Company Southern Termination Fee prior to, or concurrently with, the effectiveness of such termination.
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(c) Each of
the Company, Merger Subs, Southern and DevvStream acknowledges that (i) the agreements contained in this Section 11.2(b) are an integral part of the Transactions and (ii)
without these agreements, the Company, Merger Subs, Southern and DevvStream would not enter into this Agreement. Except as required herein, in no event shall the Company or DevvStream be required to pay more than one Termination Fee
pursuant to Section 11.2(b). In the event that DevvStream, the Company or Southern (as applicable) receives full payment of the Termination Fee pursuant to Section 11.2(b) under circumstances where a Termination Fee was payable, the receipt of a Termination Fee shall be the sole and exclusive monetary remedy for any and all losses or
damages suffered or incurred by DevvStream, the Company or Southern, as applicable, its affiliates, or any other person in connection with this Agreement (and the termination hereof), the Mergers and the other Transactions (and the
abandonment thereof) or any matter forming the basis for such termination. Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that nothing in this Section
11.2(b) shall be deemed to affect their respective rights to specific performance under Section 12.6 in order to specifically enforce this Agreement. The
Parties acknowledge and agree that any payment of a Termination Fee is not a penalty but is rather liquidated damages in a reasonable amount that is intended to compensate DevvStream, Southern or the Company, as applicable, in the
circumstances in which such fees are payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the
Transactions.
(d) The
Company, XCF and Southern acknowledge that no termination fee shall be owed if DevvStream or the Company validly terminate this Agreement pursuant to Section 11.1(c)(vi) or Section 11.1(e)(vi), respectively.
(a) Except
as expressly provided in this Agreement, each Party will bear its own expenses, including the fees and expenses of investment bankers and other advisors, incurred in connection with the Transactions, whether or not the Transactions are
consummated.
(b) If this
Agreement is terminated by Southern, DevvStream or the Company pursuant to Section 11.1(b)(ii) (Required DevvStream Shareholder Approval), then DevvStream shall pay (or cause to
be paid) to the Company an expense reimbursement payment for reasonable, documented expenses incurred by the Company in connection with this Agreement in an amount not to exceed the DevvStream Reimbursement Cap (less any applicable
withholding Tax) by wire transfer in immediately available funds to accounts designated by the Company, no later than two Business Days after the date of such termination; provided,
that if DevvStream pays the DevvStream Termination Fee pursuant to Section 11.2(b), then the aggregate amount DevvStream has paid to the Company pursuant to this Section 11.3(b) shall be credited against such DevvStream Termination Fee on a dollar-for-dollar basis.
(c) If this
Agreement is terminated by Southern, DevvStream or the Company pursuant to Section 11.1(b)(i) (Required Company Shareholder Approval), then the Company shall pay (or cause to be
paid) (i) to DevvStream an expense reimbursement payment for reasonable, documented expenses incurred by DevvStream in connection with this Agreement in an amount not to exceed the Company DevvStream Reimbursement Cap (less any applicable
withholding Tax), and (ii) to Southern an expense reimbursement payment for reasonable, documented expenses incurred by Southern in connection with this Agreement in an amount not to exceed the Company Southern Reimbursement Cap (less any
applicable withholding Tax), in each case by wire transfer in immediately available funds to accounts designated by DevvStream and Southern, respectively, no later than two Business Days after the date of such termination; provided, that
if the Company pays the Company DevvStream Termination Fee and/or the Company Southern Termination Fee pursuant to Section 11.2(b), then the respective amounts the Company has
paid to DevvStream and Southern pursuant to this Section 11.3(c) shall be credited against such Company DevvStream Termination Fee and Company Southern Termination Fee on a
dollar-for-dollar basis.
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12.1 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly
given when delivered (a) in person, (b) by electronic means (including e-mail) so long as the sender has not received machine-generated notice of unsuccessful transmission other than as a result of actions taken by or on behalf of the
recipient, (c) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (d) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return
receipt requested, in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice):
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If to Southern:
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with a copy (which will not constitute notice) to:
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201 Rue Beauregard, Suite 202
Lafayette, LA 70508
Attn: Majique Ladnier
Email: [email protected]
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Whitley LLP Attorneys at Law
24285 Katy Freeway, Suite 300
Katy, TX 77494
Attention: Samuel E. Whitley
Email: [email protected]
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If to the Company or the Merger Subs:
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with a copy (which will not constitute notice) to:
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2500 CityWest Blvd. Suite 150-138
Houston, TX 77042
Attn: Chris Cooper
Email: [email protected]
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Paul Hastings LLP
200 Park Avenue
New York, New York 10166
Attention: Gil Savir
Email: [email protected]
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and with a copy (which will not constitute notice) to:
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Stikeman Elliott LLP
5300 Commerce Court West
199 Bay Street
Toronto, Ontario, M5L 1B9
Canada
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Attention: John Ciardullo; J.R. Laffin
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Email: [email protected];
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If to the Company Special Committee:
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with a copy (which will not constitute notice) to:
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2500 CityWest Blvd. Suite 150-138
Houston, TX 77042
Attn: Chris Cooper
Email: [email protected]
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Shumaker, Loop & Kendrick, LLP
101 East Kennedy Boulevard, Suite 2800
Tampa FL 33602
Attention: Julio C. Esquivel; Darrell Smith
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If to DevvStream:
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with a copy (which will not constitute notice) to:
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2108 N St., Suite 4254
Sacramento, CA 95816
United States
Email: [email protected]
Attn: Legal Department
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Morrison & Foerster LLP
12531 High Bluff Drive
San Diego, CA 92130
Attention: Shai Kalansky
Email: [email protected]
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and with a copy (which will not constitute notice) to:
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McMillan LLP
Royal Centre, Suite 1500
1055 West Georgia Street, PO Box 11117
Vancouver, British Columbia
Canada V6E 4N7
Attention: Mark Neighbor
Email: [email protected]
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If to DevvStream Special Committee:
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with a copy (which will not constitute notice) to:
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2108 N St., Suite 4254
Sacramento, CA 95816
United States
Email: [email protected]
Attn: Steve Kukucha
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Morrison & Foerster LLP
12531 High Bluff Drive
San Diego, CA 92130
Attention: Shai Kalansky
Email: [email protected]
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and with a copy (which will not constitute notice) to:
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McMillan LLP
Royal Centre, Suite 1500
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131
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1055 West Georgia Street, PO Box 11117
Vancouver, British Columbia
Canada V6E 4N7
Attention: Mark Neighbor
Email: [email protected]
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12.2 Binding Effect; Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent
of Southern, DevvStream and the Company, and any assignment without such consent shall be null and void; provided, that the no such assignment shall relieve the assigning Party of
its obligations hereunder.
12.3 Third Parties. Except for the rights of the D&O Indemnified Persons set forth in Section 8.15(c), which the Parties acknowledge and agree are express third party beneficiaries of this Agreement, nothing contained in this Agreement or in any instrument or document
executed by any party in connection with the Transactions shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a Party or thereto or a successor or permitted assign of such a Party.
12.4 Governing Law; Jurisdiction. The Law of the State of
Delaware shall govern (a) all claims or matters related to or arising from this Agreement (including any tort or non-contractual claims), and (b) any questions, disputes or other matters in connection with the construction, interpretation,
validity and enforceability hereof, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any
other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. Each of the Parties submits to the exclusive jurisdiction of first, the Chancery Court of the State of Delaware or if such
court declines jurisdiction, then to the Federal District Court for the District of Delaware, in any Proceeding arising out of or relating to this Agreement, agrees that all claims in respect of the Proceeding shall be heard and determined
in any such court and agrees not to bring any Proceeding arising out of or relating to this Agreement in any other courts.
12.5 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING
OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE TRANSACTIONS AND/OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES UNDER THIS AGREEMENT. THE PARTIES HERETO FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
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12.6 Remedies; Specific Performance.
Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of
any one remedy will not preclude the exercise of any other remedy. The failure on the part of any Party to exercise, and no delay in exercising, any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of such right, power, or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. Each Party acknowledges that the rights of each Party to consummate the
Transactions are unique, recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages would be inadequate and the non-breaching Parties would not have adequate remedy at law, and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise breached. Accordingly, each Party shall be entitled to an
injunction or restraining order to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be
inadequate, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity. Each of the Parties agrees that it will not oppose the granting of an injunction, specific
performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other Parties have an adequate remedy at Law or an award of specific performance is not an appropriate remedy for
any reason at Law or equity.
12.7 Severability. Whenever possible, each provision hereof shall
be interpreted in such manner as to be effective and valid under applicable Law. In case any provision in this Agreement shall be held invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified
or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or
impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being
enforced, the Parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or
unenforceable provision.
12.8 Amendment and Waiver. This Agreement and the form of the
Merger Certificates may, at any time and from time to time before or after holding of the Company Meeting or the DevvStream Meeting, be amended by mutual written agreement of the Company, DevvStream and Southern (provided that after receipt of the approval by Company Shareholders of the Company Resolutions or by DevvStream Shareholders of the DevvStream Resolutions, if any such amendment shall in accordance with
applicable Law or the requirements of Nasdaq or Nasdaq Sweden require further approval of Company Shareholders or DevvStream Shareholders, the effectiveness of such amendment shall be subject to such approval of Company Shareholders or
DevvStream Shareholders). No waiver by any Party of any default, breach of representation or warranty or breach of covenant hereunder, whether intentional or not, shall be deemed to extend to any other, prior or subsequent default or breach
or affect in any way any rights arising by virtue of any other, prior or subsequent such occurrence.
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12.9 No Recourse. Notwithstanding anything that may be expressed or implied herein (except in the case of the immediately
succeeding sentence) or any document, agreement, or instrument delivered contemporaneously herewith, and notwithstanding the fact that any Party may be a partnership or limited liability company, each Party hereto, by its acceptance of the
benefits of this Agreement, covenants, agrees and acknowledges that no Persons other than the Parties shall have any obligation hereunder and that it has no rights of recovery hereunder against, and no recourse hereunder or under any
documents, agreements, or instruments delivered contemporaneously herewith or in respect of any oral representations made or alleged to be made in connection herewith or therewith shall be had against, any former, current or future
director, officer, agent, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative or employee of any Party (or any of their successors or permitted assignees), against any former, current, or future general
or limited partner, manager, stockholder or member of any Party (or any of their successors or permitted assignees) or any Affiliate thereof or against any former, current or future director, officer, agent, employee, Affiliate, manager,
assignee, incorporator, controlling Person, fiduciary, representative, general or limited partner, stockholder, manager or member of any of the foregoing, but in each case not including the Parties (each, but excluding for the avoidance of
doubt, the Parties, a “Non-Party Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim (whether in tort, Contract or otherwise) by or
on behalf of such Party against the Non-Party Affiliates, by the enforcement of any assessment or by any Proceeding, or by virtue of any statute, regulation or other applicable Law, or otherwise; it being agreed and acknowledged that no
personal Liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Non-Party Affiliate, as such, for any obligations of the applicable Party under this Agreement or the Transactions, under any documents or
instruments delivered contemporaneously herewith, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or for any claim (whether in tort, Contract or otherwise) based on, in respect of, or
by reason of, such obligations or their creation. Notwithstanding the forgoing, a Non-Party Affiliate may have obligations under any documents, agreements, or instruments delivered contemporaneously herewith or otherwise contemplated hereby
if such Non-Party Affiliate is party to such document, agreement or instrument. Except to the extent otherwise set forth in, and subject in all cases to the terms and conditions of and limitations herein, this Agreement may only be enforced
against, and any claim or cause of action of any kind based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance hereof, may only be brought against the entities that are named as Parties hereto
and then only with respect to the specific obligations set forth herein with respect to such Party. Each Non-Party Affiliate is intended as a third-party beneficiary of this Section 12.9.
12.10 Entire Agreement. This Agreement, the Term Sheet and the documents or instruments referred to
herein, including any exhibits and schedules attached hereto, which exhibits and schedules are incorporated herein by reference, together with the Ancillary Documents, contain the entire agreement and understanding among the Parties with
respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements, understandings and discussions, whether written or oral, relating to such subject matter in any way. The Parties have voluntarily
agreed to define their rights and Liabilities with respect to the Transactions exclusively pursuant to the express terms and provisions hereof, and the Parties disclaim that they are owed any duties or are entitled to any remedies not set
forth herein. Furthermore, this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations and no Person has any special relationship with another Person that would justify any
expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction.
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12.11 Interpretation. The table of
contents and the Article and Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.
Any capitalized terms used in any Schedule or Exhibit attached hereto and not otherwise defined therein shall have the meanings set forth herein. In this Agreement, unless the context otherwise requires: (a) any pronoun used shall include
the corresponding masculine, feminine or neuter forms, and words in the singular, including any defined terms, include the plural and vice versa; (b) reference to any Person includes such Person’s successors and assigns but, if applicable,
only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (c) any accounting term used and not otherwise defined in this Agreement or
any Ancillary Document has the meaning assigned to such term in accordance with GAAP (d) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such
term and shall be deemed in each case to be followed by the words “without limitation”; (e) the words “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and
not to any particular Section or other subdivision of this Agreement; (f) the word “extent” in the phrase “to the extent” (or similar phrases) shall mean the degree to which a subject or other thing extends, and such phrase shall not mean
simply “if”; (g) the word “if” and other words of similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; (h) the term “or” means “and/or”; (i) any reference to the term “ordinary course” or
“ordinary course of business” shall be deemed in each case to be followed by the words “consistent with past practice”; (j) any agreement, instrument, insurance policy, Law or Order defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument, insurance policy, Law or Order as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in
the case of statutes, regulations, rules or Orders) by succession of comparable successor statutes, regulations, rules or Orders and references to all attachments thereto and instruments incorporated therein; (k) except as otherwise
indicated, all references in this Agreement to the words “Section,” “Article,” “Schedule” and “Exhibit” are intended to refer to Sections, Articles, Schedules and Exhibits to this Agreement; and (l) the term “Dollars” or “$” means United
States dollars. Any reference in this Agreement to any Contract (including this Agreement) mean such Contract as amended, restated, supplemented or modified from time to time in accordance with the terms thereof; provided, that with respect to any Contract listed (or required to be listed) on the disclosure schedules, all material amendments thereto (for the avoidance, excluding in either case any purchase orders,
work orders or statements of work) must also be listed on the appropriate section of the applicable schedule and disclosed. Any reference in this Agreement to a Person’s directors shall include any member of such Person’s governing body and
any reference in this Agreement to a Person’s officers shall include any Person filling a substantially similar position for such Person. Any reference in this Agreement or any Ancillary Document to a Person’s shareholders or shareholders
shall include any applicable owners of the equity interests of such Person, in whatever form. The Parties and their respective counsel have reviewed and negotiated this Agreement as the joint agreement and understanding of the Parties, and
the language used herein shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Person. Any information or materials shall be deemed provided,
made available or delivered to Southern, DevvStream or the Company, as applicable, if such information or materials have been uploaded to the electronic data room maintained by the Company and its financial advisor, DevvStream or Southern,
as applicable, for purposes of the Transactions or otherwise provided to Southern, DevvStream, the Company and/or their representatives (including counsel) via e-mail, in each case with respect to the representations and warranties
contained in Article IV, Article V, Article VI and Article VII, at least one (1) Business Day prior to the Effective Date.
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12.12 Counterparts. This Agreement and each Ancillary Document may
be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
(a) Southern
and DevvStream, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement, any Ancillary Documents or the Transactions arises after the Closing between or among (x) the
shareholders or holders of other equity interests of the Company, the Company and/or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “Company
Group”), on the one hand, and (y) Southern, the Southern Shareholders, DevvStream and/or the DevvStream Shareholders, on the other hand, any legal counsel, including Paul Hastings LLP, Stikeman Elliott LLP and Shumaker,
Loop & Kendrick, LLP, that represented the Company, the Company Special Committee, and/or any other member of the Company Group prior to the Closing may represent any member of the Company Group in such dispute even though the
interests of such Persons may be directly adverse to Southern or DevvStream and even though such counsel may have represented Southern or DevvStream in a matter substantially related to such dispute, or may be handling ongoing matters for
Southern or DevvStream. Southern and DevvStream, on behalf of their respective successors and assigns, further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation,
preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions) between or among the Company, the Company Special Committee,
and/or any other member of the Company Group, on the one hand, and Paul Hastings LLP, Stikeman Elliott LLP, and/or Shumaker, Loop & Kendrick, LLP, on the other hand (including any materials, minutes, or records of the Company Special
Committee), the attorney/client privilege and the expectation of client confidence shall survive the Merger and belong to the Company Group after the Closing, and shall not pass to or be claimed or controlled by Southern or DevvStream.
Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with Southern and DevvStream under a confidentiality agreement shall remain the privileged communications or
information of the Company and shall not be used by Southern Group or the DevvStream Group against the Company Group, as subsequently defined, in connection with any dispute among the parties.
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(b) Southern
and the Company, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement, any Ancillary Documents or the Transactions arises after the Closing between or among (x)
the shareholders or holders of other equity interests of DevvStream, and/or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “DevvStream
Group”), on the one hand, and (y) any member of the Company Group or Southern, on the other hand, any legal counsel, including MoFo and McMillan LLP, that represented DevvStream or the DevvStream Special Committee prior
to the Closing may represent any member of the DevvStream Group in such dispute even though the interests of such Persons may be directly adverse to the Company Group or Southern, and even though such counsel may have represented
Southern and/or the Company in a matter substantially related to such dispute, or may be handling ongoing matters for Southern or the Company, and further agree that, as to all legally privileged communications prior to the Closing
(made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions) between or among
DevvStream, the DevvStream Special Committee, and/or any member of the DevvStream Group, on the one hand, and MoFo and/or McMillan LLP, on the other hand (including any materials, minutes, or records of the DevvStream Special
Committee), the attorney/client privilege and the expectation of client confidence shall survive the Merger and belong to the DevvStream Group after the Closing, and shall not pass to or be claimed or controlled by the Company or
Southern. Notwithstanding the foregoing, any privileged communications or information shared by DevvStream prior to the Closing with Southern and the Company under a confidentiality agreement shall remain the privileged communications
or information of DevvStream and shall not be used by Southern Group or the Company Group against the DevvStream Group, as subsequently defined, in connection with any dispute among the parties.
(c) DevvStream
and the Company, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement, any Ancillary Documents or the Transactions arises after the Closing between or among (x)
Southern, shareholders or holders of other equity interests of Southern, and/or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “Southern
Group”), on the one hand, and (y) any member of the Company Group or DevvStream, on the other hand, any legal counsel, including Whitley LLP Attorneys at Law, that represented Southern and/or any other member of Southern
Group, in such dispute even though the interests of such Persons may be directly adverse to the Company or DevvStream and even though such counsel may have represented Southern in a matter substantially related to such dispute, or may be
handling ongoing matters for the Company. DevvStream and the Company, on behalf of their respective successors and assigns, further agree that, as to all legally privileged communications prior to the Closing (made in connection with the
negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions) between or among Southern and/or any other member of
Southern Group, on the one hand, and Whitley LLP Attorneys at Law, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Merger and belong to Southern Group after the Closing, and
shall not pass to or be claimed or controlled by the Company or DevvStream. Notwithstanding the foregoing, any privileged communications or information shared by Southern prior to the Closing with DevvStream and the Company under a
confidentiality agreement shall remain the privileged communications or information of Southern and shall not be used by the DevvStream Group or the Company Group against the Southern Group, as subsequently defined, in connection with any
dispute among the parties.
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12.14 Prior Agreement. Upon the expiration of both the termination rights set forth in Section 11.1(c)(vi)
and Section 11.1(e)(vi) (whether occasioned by the receipt of DevvStream Fairness Opinion and Company Fairness Opinion, respectively, or the failure to timely exercise such
termination rights as set forth therein), Southern and DevvStream hereby acknowledge and agree that that certain Agreement and Plan of Merger, dated as of December 3, 2025, by and among Southern, DevvStream and the other parties thereto,
shall automatically terminate and be of no further force or effect, without any liability or ongoing obligation to any party thereto.
ARTICLE XIII
For purpose of this Agreement, the following capitalized terms have the following meanings:
“AB Registrar” has the meaning specified in Section 2.1(a).
“Acquisition Proposal” has the meaning specified in Section 8.8.
“Affiliate” means, with respect to any Person, any other
Person directly or indirectly Controlling, Controlled by, or under common Control with such Person.
“Agreement” has the meaning specified in the Preamble
hereto.
“Alternative Transaction” has the meaning specified in Section 8.8.
“Ancillary Documents” means the Term Sheet and each
agreement, instrument or document attached hereto as an Exhibit, and the other agreements, certificates, and instruments to be executed or delivered by any of the Parties in connection with or pursuant to this Agreement.
“Anti-Corruption Laws” means all U.S. and non-U.S. Laws
relating to the prevention of corruption, money laundering, and bribery, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the UK Bribery Act of 2010.
“Benefit Plan” means each “employee benefit plan” (as such
term is defined in ERISA § 3(3), whether or not subject to ERISA), each deferred compensation, compensation, incentive, equity purchase or other equity or equity-based compensation, phantom equity, severance, termination pay, salary
continuation, retention, stay, post-termination, holiday, vacation, bonus, commission, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit sharing, pension, savings, fringe benefit,
retirement or other similar plan, program, agreement, Contract, commitment, policy or arrangement, and each other compensation or benefit plan, program, agreement, whether formal or informal, whether written or unwritten and whether legally
binding or not.
“Board” means the board of directors of an entity as
constituted from time to time.
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“Bond Offering” has the meaning specified in Section 10.2(e).
“Business Day” means any day other than a Saturday, Sunday
or a legal holiday on which commercial banking institutions in Delaware or Alberta are authorized to close for business.
“Carbon Credit” means an instrument, benefit, offset,
allowance or other unit that represents a verified reduction or removal of one metric tonne of CO2 equivalent.
“Carbon Standard” means, with respect to a Carbon Credit,
the program or standard administered by a mandatory or voluntary domestic or international greenhouse gas program, certification, scheme or protocol, that certifies such Carbon Credit as a verified reduction or removal of one metric tonne
of CO2 equivalent, including its methodologies and published guidance.
“Certificate of Domestication” has the meaning specified in
Section 2.1(a).
“Certificate of Incorporation” means, with respect to any
corporation, the certificate of incorporation or articles of incorporation, as applicable, of such corporation.
“Closing Date” has the meaning specified in Section 1.1.
“Closing” has the meaning specified in Section 1.1.
“Code” means the U.S. Internal Revenue Code of 1986, as
amended, including any valid treasury regulation promulgated thereunder.
“Company Assets” has the meaning specified in Section 7.19.
“Company Benefit Plan” has the meaning specified in Section 7.21(a).
“Company Board” has the meaning specified in the Recitals.
“Company Board Recommendation” has the meaning specified in
the Recitals.
“Company Change in Recommendation” has the meaning
specified in Section 11.1(d)(ii).
“Company Common Shares” means the shares of Class A Common
Stock of the Company, par value $0.0001 per share.
“Company Convertible Securities” means, collectively, any
options, rights or other securities convertible into or exercisable or exchangeable for, any shares, capital stock or other equity of or other voting interests in the Company, including the Company Warrants.
“Company Core Securityholders” has the meaning specified in
the Recitals hereto.
“Company DevvStream Reimbursement Cap” means $170,000.
“Company DevvStream Termination Fee” means $510,000.
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“Company Disclosure Schedules” has the meaning specified in
Article VII.
“Company Equity Incentive Plans” means the 2024 Equity
Incentive Plan and 2025 Equity Incentive Plan of the Company, as amended and restated from time to time.
“Company Fairness Opinion” means a written opinion received
by the Company Special Committee and the Company Board to the effect that, based upon customary analysis among other matters as determined by the Company Special Committee and the Company Board in their sole discretion and consistent with
their respective fiduciary duties, the issuance of the Company Common Shares to the shareholders of Southern and DevvStream, taken together, is fair, from a financial point of view, to the Company.
“Company Financial Statements” has the meaning specified in
Section 7.7(a).
“Company Group” has the meaning specified in Section 12.13(a).
“Company Internal Controls” has the meaning specified in Section 7.7(d).
“Company IP Agreements” means including (a) Contracts under
which the Company has granted or agreed to grant to any other Person any license, covenant, release, immunity or other right that applies to or any Owned IP and (b) all Company IP Licenses.
“Company IP Licenses” has the meaning specified in Section 7.15(b).
“Company Leases” has the meaning specified in Section 7.17(a).
“Company Material Adverse Effect” has the meaning specified
in Section 7.1.
“Company Material Contract” has the meaning specified in Section 7.14(a).
“Company Meeting” has the meaning specified in Section 3.5(a).
“Company Permit” has the meaning set forth in Section 7.11.
“Company Personal Property” has the meaning specified in Section 7.18.
“Company Products” means each of the products, services,
and Software (including mobile phone and table applications) that have been or are currently being developed, marketed, distributed, licensed, sold, offered, or provided by or on behalf of any of the Company, including any products or
services (a) made available through or as part of the Company website or (b) derived from or incorporating any Company data.
“Company Proxy Statement” has the meaning specified in Section 3.5(e).
“Company Registered IP” has the meaning specified in Section 7.15(a).
“Company Related Person” has the meaning specified in Section 7.23.
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“Company Resolutions” means the resolutions to be put
before the Company Shareholders authorizing the issuance of Company Common Shares in connection with the Mergers (for purposes of Nasdaq Listing Rule 5635) and any other matters required to be approved by the Company Shareholders in order
to consummate the Transactions.
“Company SEC Documents” has the meaning set forth in Section 7.32.
“Company Securities” means, collectively, the Company
Common Shares, the Company Convertible Securities, and the Company Warrants.
“Company Securityholders” means, collectively, the holders
of Company Securities prior to the Effective Time.
“Company Shareholders” means, collectively, the holders of
Company Shares prior to the Effective Time.
“Company Southern Reimbursement Cap” means $397,000.
“Company Southern Termination Fee” means $1,190,000.
“Company Special Committee” has the meaning specified in
the Recitals.
“Company Specified Representations” has the meaning
specified in Section 10.3(a)(i).
“Company Support & Lock-Up Agreements” has the meaning
specified in the Recitals.
“Company Systems” means all computer firmware, hardware,
software, and computer or information technology systems or infrastructure, networks, and data or information contained therein or transmitted thereby, and other similar items of automated, computerized, or software systems owned, licensed,
used or relied upon by the Company or any of its Subsidiaries in the conduct of its business, including the Company Products.
“Company Warrants” means the outstanding common share
purchase warrants of the Company.
“Company” has the meaning specified in the Preamble hereto.
“Competition Act” means the Competition Act (Canada), RSC
1985, c. C-34.
“Consent” means any consent, approval, waiver,
authorization or Permit of, or notice to or declaration or filing with any Governmental Authority or any other Person.
“Contracts” means all contracts, agreements, binding
arrangements, bonds, notes, indentures, mortgages, debt instruments, purchase order, licenses (and all other contracts, agreements or binding arrangements concerning Intellectual Property), franchises, leases and other instruments or
obligations of any kind, written or oral (including any amendments and other modifications thereto).
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“Control” means the possession, directly or indirectly, of
the power to direct the management and policies of a Person whether through the ownership of voting securities, its capacity as a sole or managing member or otherwise.
“Conversion Investment” has the meaning specified in Section 8.18(a).
“Converted Option” has the meaning specified in Section 1.3(d).
“Converted Warrant” has the meaning specified in Section 1.3(c).
“Copyleft License” means any license that requires, as a
condition of use, modification or distribution of Software subject to such license, that such Software, or other Software or other Intellectual Property incorporated into, derived from, used or distributed with such Software (a) in the case
of Software, be made available or distributed in a form other than binary (e.g., in source code form), (b) be licensed for the purpose of preparing derivative works, (c) be licensed under terms that allow Company Products or portions
thereof or interfaces therefor to be reverse engineered, reverse assembled or disassembled (other than by operation of legal requirement) or (d) be redistributable at no license fee.
“Copyrights” means any works of authorship, mask works and
all copyrights therein, including all renewals and extensions, copyright registrations and applications for registration and renewal, and non-registered copyrights.
“D&O Indemnified Persons” has the meaning specified in
Section 8.15(c).
“DevvStream Assets” has the meaning specified in Section 6.19.
“DevvStream Benefit Plan” has the meaning specific in Section 6.21(a).
“DevvStream Board” means the board of directors of
DevvStream.
“DevvStream Board Recommendation” has the meaning specified
in the Recitals.
“DevvStream Certificate of Merger” has the meaning
specified in Section 3.1(a)(ii).
“DevvStream Change in Recommendation” has the meaning
specified in Section 11.1(e)(iii).
“DevvStream Circular” means the notice of the DevvStream
Meeting and accompanying management information circular (which shall be included in the Registration Statement), including all schedules, appendices and exhibits to, and information incorporated by reference in, such management information
circular, to be sent to DevvStream Shareholders in connection with the DevvStream Meeting, as amended, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement.
“DevvStream Common Shares” means the common shares in the
capital of DevvStream.
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“DevvStream Consideration Shares” means an aggregate number
of fully-paid and non-assessable Company Common Shares equal to 15% of the aggregate number of Company Common Shares issued and outstanding immediately prior to the Effective Time.
“DevvStream Convertible Securities” means, collectively,
any options, warrants (including the DevvStream Warrants), convertible notes, rights, subscriptions, calls, preferred shares, or other securities, instruments or agreements that are convertible into, exercisable for or exchangeable for
DevvStream Common Shares.
“DevvStream Core Securityholders” has the meaning specified
in the Recitals hereto.
“DevvStream Disclosure Schedules” has the meaning set forth
in Article VI.
“DevvStream Equity Incentive Plan” has the meaning
specified in Section 1.3(d).
“DevvStream Fairness Opinion” means a written opinion
received by the DevvStream Board and the DevvStream Special Committee to the effect that, based upon customary analysis among other matters as determined by the DevvStream Board and the DevvStream Special Committee in their sole discretion
and consistent with their respective fiduciary duties, the DevvStream Per Share Consideration is fair, from a financial point of view, to the DevvStream Shareholders.
“DevvStream Financial Statements” has the meaning specified
in Section 6.7(a).
“DevvStream Internal Controls” has the meaning specified in
Section 6.7(d).
“DevvStream IP Agreements” means including (a) Contracts
under which DevvStream has granted or agreed to grant to any other Person any license, covenant, release, immunity or other right that applies to or any Owned IP and (b) all DevvStream IP Licenses.
“DevvStream Leases” has the meaning specified in Section 6.17(a).
“DevvStream Material Adverse Effect” has the meaning
specific in Section 6.1.
“DevvStream Material Contract” has the meaning set forth in
Section 6.14(a).
“DevvStream Meeting” means the special meeting of
DevvStream Shareholders, including any adjournment or postponement thereof in accordance with the terms of this Agreement, to be called and held in to consider the DevvStream Resolutions and for any other purpose as may be set forth in the
DevvStream Circular and agreed to in writing by the Company and Southern, acting reasonably.
“DevvStream Merger” has the meaning specified in the
Recitals.
“DevvStream Merger Sub” has the meaning specified in the
Preamble.
“DevvStream Option” has the meaning specified in Section 1.3(d).
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“DevvStream Outstanding Shares” means the aggregate number
of DevvStream Shares issued and outstanding immediately prior to the Effective Time; provided, however, that for purposes of calculating the DevvStream Per Share Consideration, “DevvStream Outstanding Shares” shall be deemed to include the
aggregate number of DevvStream Shares that would be issuable upon the full conversion of Helena Note 1 and Helena Note 2 (as defined in the DevvStream Disclosure Schedules, and collectively, the “Helena Notes”) to the extent such Helena Notes remain outstanding and have not been fully converted into DevvStream Shares immediately prior to the Effective Time.
“DevvStream Permits” has the meaning specified in Section 6.11.
“DevvStream Per Share Consideration” means the quotient
obtained by dividing (a) the DevvStream Consideration Shares by (b) the DevvStream Outstanding Shares.
“DevvStream Personal Property Leases” has the meaning
specified in Section 6.18.
“DevvStream Registered IP” has the meaning specified in Section 6.15(a).
“DevvStream Reimbursement Cap” means $170,000.
“DevvStream Related Person” has the meaning specified in Section 6.23.
“DevvStream Reorganization” has the meaning specified in
the Recitals.
“DevvStream Resolutions” means the resolutions to be put
before the DevvStream Shareholders authorizing the Domestication, the DevvStream Merger, and the Agreement.
“DevvStream Securityholder” means any Person that is the
holder of record of any DevvStream Common Shares or DevvStream Convertible Securities.
“DevvStream Shareholders” means the holders of DevvStream
Shares.
“DevvStream Shares” means the Pre-Domestication DevvStream
Common Shares and/or the Post-Domestication DevvStream Common Shares, as applicable.
“DevvStream Special Committee” has the meaning specified in
the Recitals.
“DevvStream Specified Representations” has the meaning
specified in Section 10.2(a)(iv).
“DevvStream Support & Lock-Up Agreement” has the
meaning specified in the Recitals.
“DevvStream Surviving Corporation” has the meaning
specified in Section 3.1(d).
“DevvStream Termination Fee” means $510,000.
“DevvStream Warrants” means the outstanding common share
purchase warrants of DevvStream.
“DevvStream” has the meaning specified in the Preamble
hereto.
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“DGCL” has the meaning specified in the Recitals hereto.
“Domestication” has the meaning specified in the Recitals
hereto.
“EBITDA” with respect to any Party, means such Party’s
earning before interest, taxes, depreciation and amortization, as modeled by such Party.
“Effective Date” shall be the Closing Date.
“Effective Time” has the meaning specified in Section 3.1(a).
“Enforceability Exceptions” has the meaning specified in Section 4.2(c).
“Environmental Law” means any Law in any way relating to
(a) public or worker health or safety, (b) pollution or the protection, preservation or restoration of the environment and natural resources (including air, water vapor, surface water, groundwater, drinking water supply, surface land,
subsurface land, plant and animal life or any other natural resource), or (c) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, Release or disposal of
Hazardous Materials.
“Environmental Liabilities” means, in respect of any
Person, all material Liabilities under Environmental Law, including as a result of any claim or demand by any other Person or in response to any violation of Environmental Law.
“ERISA” means the Employee Retirement Income Security Act
of 1974, as amended.
“Exchange Act” means the U.S. Securities Exchange Act of
1934, as amended.
“Exchange Agent” has the meaning specified in Section 1.3(a).
“Ex-Im Laws” means all U.S. and non-U.S. Laws relating to
export, reexport, transfer, and import controls, including the Export Administration Regulations, the customs and import Laws administered by U.S. Customs and Border Protection, and the EU Dual Use Regulation.
“Expenses” has the meaning specified in Section 11.3.
“Fraud Claim” means any claim based on Fraud.
“Fraud” means actual and intentional common law fraud
committed by a Party with respect to the making of such Party’s representations and warranties expressly set forth in this Agreement or any Ancillary Document with the intent that any other Party rely thereon. Under no circumstances shall
“fraud” include any equitable fraud, constructive fraud, negligent misrepresentation, unfair dealings, or any other fraud or torts based on recklessness or negligence.
“Funding Schedule” has the meaning specified in Section 8.18(b).
“GAAP” means generally accepted accounting principles as in
effect in the United States of America.
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“Governmental Authority” means any federal, state,
provincial, local, foreign or other governmental, quasi-governmental or administrative body, instrumentality, department or agency, including any stock exchange, securities commission, or any court, tribunal, administrative hearing body,
arbitration panel or body (public or private), commission, or other similar dispute-resolving panel or body.
“Hazardous Material” means any substance, material or waste
that is regulated, or that could result in the imposition of Liability or standards of conduct, under any Environmental Law, including petroleum and its by-products, asbestos, polychlorinated biphenyls, per- and polyfluoroalkyl substances,
radon, mold, noise, odor and urea formaldehyde insulation.
“HSR Act” mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, and any rules or regulations promulgated thereunder.
“Indebtedness” of any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money (including the outstanding principal and accrued but unpaid interest), (b) all obligations for the deferred purchase price of property or services (other than trade payables incurred in
the ordinary course of business), (c) any (i) accrued or outstanding severance, retention or termination payments, (ii) accrued paid time off (including vacation, personal and sick days) or (iii) accrued bonuses, commissions or other
incentive compensation, in each case, in respect of any current or former employee, officer, director or other individual service provider of the Company and together with the employer’s portion of all FICA state, local, or foreign
withholding, payroll, employment, unemployment, social security or similar Taxes in connection with such amounts, calculated as if all such amounts were paid on the Closing Date, (d) any obligations under any unfunded or underfunded pension
or retirement, post-retirement medical, post-employment benefit or nonqualified deferred compensation plans, programs, agreements or arrangements, together with the employer’s portion of all payroll, employment, unemployment, social
security or similar Taxes in connection with such amounts, (e) any other indebtedness of such Person that is evidenced by a note, bond, debenture, credit agreement or similar instrument, (f) all obligations of such Person under leases that
should be classified as capital leases in accordance with GAAP, (g) all obligations of such Person for the reimbursement of any obligor on any line or letter of credit, banker’s acceptance, guarantee or similar credit transaction, in each
case, that has been drawn or claimed against, (h) all obligations of such Person in respect of acceptances issued or created, (i) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which
payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency, (j) all obligations secured by a Lien on any property of such Person, (k) any premiums, prepayment fees or other penalties, fees,
costs or expenses associated with payment of any Indebtedness of such Person, (l) any and all accounts payable of such Person, (m) any and all accrued expenses of such Person, and (n) all obligation described in clauses (a) through (m)
above of any other Person which is directly or indirectly guaranteed by such Person or which such Person has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor
against loss, but in all cases excluding transaction Expenses associated with the Transactions.
“Initial Southern Financial Statements” has the meaning
specified in Section 4.7(a).
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“Intellectual Property” means any and all of the following
in any jurisdiction throughout the world: (a) Trademarks; (b) Copyrights; (c) Trade Secrets; (d) Patents; (e) Internet Assets; and (f) Software, data, and databases, and (g) all other intellectual property and related proprietary and moral
rights together with all goodwill related to the foregoing.
“Intended US Tax Treatment: has the meaning specified in Section 3.6.
“Interim Period” has the meaning specified in Section 8.1.
“Internet Assets” means all domain name registrations,
social media accounts, handles, and identifiers, web sites and web addresses and related rights, items and documentation related thereto, and applications for registration therefor.
“Investment Canada Act” means the Investment Canada Act,
R.S.C., 1985, c. 28 (1st Supp.), as amended, and any rules or regulations promulgated thereunder.
“Investment Company Act” has the meaning specified in Section 4.28.
“IRS” means the United States Internal Revenue Service.
“ITA” means the Income Tax Act (Canada).
“Knowledge” means, (a) with
respect to Southern, the actual knowledge of the individuals set forth on Section 13.1(a) of the Southern Disclosure Schedules after reasonable due inquiry, (b) with respect to
DevvStream, the actual knowledge of the individuals set forth on Section 13.1(b) of the DevvStream Disclosure Schedules after reasonable due inquiry, and (c) with respect to the
Company and the Merger Subs, the actual knowledge of the individuals set forth on Section 13.1(c) of the Company Disclosure Schedules after reasonable due inquiry.
“Labor Agreement” means any collective bargaining agreement
or other labor-related Contract with any labor union, labor organization, or works council.
“Latest Balance Sheet Date” means (a) with respect to the
Company and its Subsidiaries, December 31, 2025, (b) with respect to DevvStream and its Subsidiaries, July 31, 2025, and (c) with respect to Southern, September 30, 2025.
“Law” means any federal, state, county, local, provincial,
municipal, foreign, international, supranational or other law, act, statute, legislation, principle of common law, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, directive, resolution, requirement, writ,
injunction, settlement, Order or Consent that is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority.
“LBCA” has the meaning specified in the Recitals hereto.
“Letter of Authorization” has the meaning specified in Section 2.1(a).
“Letter of Transmittal” has the meaning specified in Section 1.3(a).
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“Liabilities” means any and all liabilities, Indebtedness,
Actions or obligations of any nature (whether absolute, accrued, contingent or otherwise, whether known or unknown, whether direct or indirect, whether matured or unmatured, whether due or to become due and whether or not required to be
recorded or reflected on a balance sheet under GAAP or other applicable accounting standards), including Tax liabilities due or to become due.
“Licensed IP” means all Intellectual Property in which the
Company, DevvStream or Southern, as applicable, has or purports to have a license or non-ownership right to use or exploit such Intellectual Property, including Intellectual Property subject to a covenant not to sue in favor of the Company,
DevvStream or Southern, as applicable.
“Lien” means any mortgage, pledge, security interest,
attachment, right of first refusal, option, proxy, voting trust, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), restriction (whether on voting,
sale, transfer, disposition or otherwise), any subordination arrangement in favor of another Person, license, or any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar Law.
“Matching Period” has the meaning specified in Section 8.8(d)(v).
“Material Adverse Effect” means, with respect to any
specified Person, any fact, event, occurrence, change or effect that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect upon (a) the business, assets, Liabilities, results of
operations or condition (financial or otherwise) of such Person, taken as a whole, or (b) the ability of such Person on a timely basis to consummate the Transactions to which it is a party or bound or to perform its obligations hereunder or
thereunder; provided, however, that for purposes of clause (a) above, any changes or effects directly or indirectly
attributable to, resulting from, relating to or arising out of the following (by themselves or when aggregated with any other, changes or effects) shall not be deemed to be, constitute, or be taken into account when determining whether
there has or may, would or could have occurred a Material Adverse Effect: (i) general changes in the financial or securities markets or general economic or political conditions in the country or region in which such Person does business;
(ii) changes, conditions or effects that generally affect the industries in which such Person principally operates; (iii) changes in GAAP or other applicable accounting principles or mandatory changes in the regulatory accounting
requirements applicable to any industry in which such Person principally operates; (iv) conditions caused by acts of God, terrorism, war (whether or not declared), natural disaster or weather conditions, epidemics, pandemics, or disease
outbreaks (including SARS-CoV-2 or COVID-19, and any evolutions or variants thereof or related or associated epidemics, pandemics or disease outbreaks) or public health emergencies (as declared by the World Health Organization or the Health
and Human Services Secretary of the United States); (v) any failure in and of itself by such Person to meet any internal or published budgets, projections, forecasts or predictions of financial performance for any period (provided, that the underlying cause of any such failure may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur to the
extent not excluded by another exception herein); and (vi) with respect to DevvStream, the de-listing or threatened de-listing of the DevvStream Shares from Nasdaq or any notice, determination or proceeding by Nasdaq relating to the
continued listing of the DevvStream Shares on Nasdaq; provided further, however, that any event, occurrence, fact, condition, or change referred to in clauses (i)—(v) immediately above shall be taken into account in determining whether a
Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition, or change has a disproportionate effect on such Person compared to other participants in the
industries in which such Person primarily conducts its businesses.
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“Merger Certificates” has the meaning specified in Section 3.1(a).
“Merger Consideration Shares” has the meaning specified in
Section 1.4(a).
“Merger Subs” has the meaning specified in the Preamble.
“Mergers” has the meaning specified in the Recitals.
“Merger Sub Material Adverse Effect” has the meaning
specified in Section 5.1.
“MI 61-101” means Multilateral Instrument 61-101 –
Protection of Minority Shareholders in Special Transactions.
“Misconduct” shall mean (i) any unlawful, illegal,
fraudulent or deceptive conduct, (ii) harassment or discrimination, (iii) other acts of a similar nature that could reasonably be expected to bring Southern, DevvStream or the Company, as applicable, into public contempt, ridicule or
disrepute or be materially injurious to the business, reputation or finances of Southern, DevvStream or the Company, as applicable, or any officer of Southern, DevvStream or the Company, as applicable, (iv) unwanted or unlawful sexual
advances, lewd or sexually explicit comments, the sending of sexually explicit images or messages or other sexual harassment or (vi) any retaliatory act for refusing or opposing any of the above.
“Misrepresentation” means an untrue statement of a material
fact or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which they are made.
“MoFo” means Morrison & Foerster LLP.
“Nasdaq” means the Nasdaq Global Market.
“Nasdaq Sweden” means Nasdaq First North Premier Growth
Market.
“Non-Party Affiliate” has the meaning specified in Section 12.9.
“OFAC” has the meaning specified in Section 13.1.
“Off-Plan Award has the meaning specified in Section 1.3(f).
“Offtake Agreement” has the meaning specified in Section 8.20.
“Off-the-Shelf Software” has the meaning specified in Section 6.15(b).
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“Order” means any order, directive, decree, ruling,
judgment, injunction, writ, determination, binding decision, verdict, award or other action that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
“Organizational Documents” means, with respect to any
Person that is an entity, its certificate of incorporation, certificate of formation, bylaws, operating agreement, memorandum of association, notice of articles, articles or similar organizational documents, in each case, as amended.
“Outside Date” has the meaning specified in Section 11.1(b)(iv).
“Owned IP” means all Intellectual Property in which the
Company, DevvStream or Southern, as applicable, has or purports to have an ownership interest in any nature (whether solely or jointly with another Person).
“Party” has the meaning specified in the Preamble hereto.
“Patents” means any patents, patent applications and the
inventions, designs and improvements described and claimed therein, patentable inventions, and other patent rights (including any divisional, provisional, continuations, continuations-in-part, substitutions, or reissues thereof, whether or
not patents are issued on any such applications and whether or not any such applications are amended, modified, withdrawn, or refiled).
“PCAOB Financial Statements” has the meaning specified in Section 8.16(a).
“PCAOB” means the U.S. Public Company Accounting Oversight
Board (or any successor thereto).
“Permits” means all federal, state, provincial, local or
foreign or other third-party permits, grants, easements, consents, approvals, authorizations, exemptions, licenses, franchises, concessions, ratifications, permissions, clearances, confirmations, endorsements, waivers, certifications,
designations, ratings, registrations, qualifications or Orders of any Governmental Authority or any other Person.
“Permitted Liens” means (a) Liens for Taxes or assessments
and similar governmental charges or levies, which either are (i) not delinquent or (ii) being contested in good faith and by appropriate Proceedings, and adequate reserves have been established with respect thereto, (b) other Liens imposed
by operation of Law arising in the ordinary course of business for amounts which are not due and payable and as would not in the aggregate materially adversely affect the value of, or materially adversely interfere with the use of, the
property subject thereto, (c) Liens incurred or deposits made in the ordinary course of business in connection with social security, (d) Liens on goods in transit incurred pursuant to documentary letters of credit, in each case arising in
the ordinary course of business, or (e) Liens arising under this Agreement or any Ancillary Document.
“Person” means an individual, corporation, partnership
(including a general partnership, limited partnership, or limited liability partnership), limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political subdivision
thereof, or an agency or instrumentality thereof.
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“Personal Data” means, with respect to any natural Person,
any information that allows the identification of such Person or enables access to such Person’s financial information or that is otherwise subject to or defined as “personal data,” “personally identifiable information,” “personal
information,” “protected health information” or similar term under any applicable Privacy Laws.
“Personal Property” means any machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant, parts and other tangible personal property.
“Plant” means a new methanol-to-jet or similar biomass fuel
plant in or around St. Charles Parish, Louisiana, or such other technologies or locations proposed by Southern and consented to by the Company.
“Plant Conversion” has the meaning specified in Section 8.18(a).
“Plant Conversion Funding” has the meaning in Section 8.18(b).
“Post-Closing Company Board” has the meaning specified in Section 8.14(a).
“Post-Domestication DevvStream Common Shares” means the
shares of common stock of DevvStream following the Domestication, par value $0.0001 per share.
“Pre-Closing Reorganization” has the meaning specified in Section 8.17(a).
“Pre-Domestication DevvStream Common Shares” means the
common shares, without par value, of DevvStream.
“Privacy Laws” means all applicable Laws relating to
privacy and protection of Personal Data and any and all similar Laws relating to privacy, security, data protection, data availability and destruction and data breach, including security incident notification.
“Proceeding” or “Action” means any notice of noncompliance or violation, or any claim, demand, action, suit, proceeding, complaint (including a qui tam complaint), charge, hearing, litigation, audit, settlement, labor dispute,
inquiry, civil investigative demand, subpoena, stipulation, assessment, arbitration, demand for recoupment or revocation, or any request (including any request for information) or investigation before or by a Governmental Authority or an
arbitrator.
“Public Certifications” means collectively, all
certifications and statements required by (a) Rules 13a-14 or 15d-14 under the Exchange Act, and (b) 18 U.S.C. § 1350 (Section 906 of SOX).
“Registration Statement” has the meaning specified in Section 3.4(a).
“Registry Account” means an account established by or on
behalf of the Company with a Registry including for the holding, transfer, retirement and cancellation of a Carbon Credit.
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“Registry” means any Carbon Credit registry established or
operated for the verification, holding, transfer, retirement, and cancellation of a Carbon Credit, including but not limited to, the registry maintained by each of Verra, Gold Standard, Climate Action Reserve or the American Carbon
Registry.
“Regulatory Approval” means any consent, waiver, Permit,
exemption, review, Order, decision or approval of, or any registration and filing with (including any notice required to be provided to), any Governmental Authority, or the expiry, waiver or termination of any waiting period imposed by Law
or a Governmental Authority, and with respect to such consent, waiver, permit, exemption, review, order, decision or approval of, or any registration and filing with, any Governmental Authority, it shall not have been withdrawn, terminated,
lapsed, expired or is otherwise no longer effective, in each case in connection with the Transactions and includes the Required Regulatory Approvals.
“Release” means any release, spill, emission, leaking,
pumping, pouring, emptying, escaping, injection, deposit, disposal, discharge, dispersal, or leaching into the indoor or outdoor environment, or into or out of any property.
“Representatives” means, as to any Person, such Person’s
Affiliates and the respective managers, directors, officers, employees, independent contractors, consultants, advisors (including financial advisors, counsel and accountants), agents and other legal representatives of such Person or its
Affiliates.
“Required DevvStream Shareholder Approval” means the
approval of the DevvStream Resolutions by at least (i) 66 2/3% of the votes cast on the DevvStream Resolutions by the DevvStream Shareholders present in person or represented by proxy at the DevvStream Meeting; and (ii) if applicable, a
simple majority of the votes cast on the DevvStream Resolutions by the DevvStream Shareholders present in person or represented by proxy at the DevvStream Meeting, after excluding the votes of persons whose votes must be excluded in
accordance with MI 61-101.
“Required Financial Statements” has the meaning specified
in Section 8.16.
“Required Regulatory Approvals” means the Stock Exchange
Approval and the termination of expiration of the waiting period required by the HSR Act.
“SAF Offtake Agreement” has the meaning specified in Section 8.20.
“Sanctioned Country” means any country or region or
government thereof that is, or has been in the last five years, the subject or target of a comprehensive embargo under Trade Controls (including Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, the so-called “Donetsk
People’s Republic,” and the so-called “Luhansk People’s Republic”).
“Sanctioned Person” means any Person that is the subject or
target of sanctions or restrictions under Trade Controls including: (i) any Person listed on any U.S. or non-U.S. sanctions- or export-related restricted party list, including the U.S. Department of the Treasury Office of Foreign Assets
Control’s (“OFAC”) List of Specially Designated Nationals and Blocked Persons, or any other OFAC, U.S. Department of Commerce Bureau of Industry and Security, or U.S. Department of
State sanctions- or export-related restricted party list; (ii) any Person located, organized, or resident in a Sanctioned Country; (iii) any Person that is, in the aggregate, 50 percent or greater owned, directly or indirectly, or otherwise
controlled by a Person or Persons described in clauses (i)-(ii); or (iv) any national of a Sanctioned Country with whom U.S. persons are prohibited from dealing.
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“Sanctions” means all U.S. and non-U.S. Laws relating to
economic or trade sanctions, including the Laws administered or enforced by the United States (including by OFAC or the U.S. Department of State) and the United Nations Security Council.
“SEC” means the U.S. Securities and Exchange Commission (or
any successor Governmental Authority).
“Securities Act” means the Securities Act of 1933, as
amended.
“Securities Authority” means, as applicable, the Ontario
Securities Commission, the SEC and any other applicable securities commission or securities regulatory authority of a province or territory of Canada or the United States, as applicable.
“Share Cap” has the meaning specified in Section 8.18(c).
“Signing Date” shall have the meaning specified in the
Preamble hereto.
“Software” means any computer software programs, including
all source code, object code, data and databases, and documentation related thereto and all software modules, tools and databases.
“Source Code” means the source code and interpreted code
for all Software, including all comments and procedural code, in a form intelligible to trained programmers and capable of being translated into object code through assembly, compiling or otherwise, or capable of being interpreted (e.g., by
an interpreter), in each case for operation on a host system, further including all related documentation, including flow charts, schematics, statements of principles of operations, and architecture standards, describing the data flows,
data structures, and control logic of the Software in sufficient detail to enable a trained programmer through study of such documentation to maintain or modify the Software without undue experimentation.
“Southern Articles of Merger” has the meaning specified in
Section 3.1(a).
“Southern Assets” has the meaning specified in Section 4.16.
“Southern Benefit Plan” has the meaning specified in Section 4.20(b).
“Southern Board” has the meaning specified in the Recitals.
“Southern Certificate of Merger” has the meaning specified
in Section 3.1(a).
“Southern Consideration Shares” means a number of
fully-paid and non-assessable Company Common Shares equal to 35% of the aggregate number of Company Common Shares issued and outstanding immediately prior to the Effective Time.
153
“Southern Convertible Securities” means, collectively, any
securities convertible into or exchangeable for, any shares, capital stock or other equity of or other voting interests in Southern.
“Southern Disclosure Schedules” has the meaning specified
in Article IV.
“Southern Financial Statements” has the meaning specified
in Section 4.7(a).
“Southern Group” has the meaning specified in Section 12.13(c).
“Southern IP Agreements” means including (a) Contracts
under which Southern has granted or agreed to grant to any other Person any license, covenant, release, immunity or other right that applies to or any Owned IP and (b) all Company IP Licenses
“Southern IP Licenses” has the meaning specified in Section 4.14(b).
“Southern Leases” has the meaning specified in Section 4.16(a).
“Southern Material Adverse Effect” has the meaning
specified in Section 4.1.
“Southern Material Contract” has the meaning specified in Section 4.13(a).
“Southern Merger” has the meaning specified in the
Recitals.
“Southern Merger Sub” has the meaning specified in the
Preamble.
“Southern Offtake Agreement” has the meaning specified in Section8.20.
“Southern Per Share Consideration” means that number of
Company Common Shares equal to the quotient obtained by dividing (i) the Southern Consideration Shares by (ii) the aggregate number of Southern Shares issued and outstanding immediately prior to the Effective Time.
“Southern Personal Property Leases” has the meaning
specified in Section 4.17.
“Southern Permits” has the meaning specified in Section 4.10.
“Southern Products” means each of the products, services,
and Software (including mobile phone and table applications) that have been or are currently being developed, marketed, distributed, licensed, sold, offered, or provided by or on behalf of Southern, including any products or services (a)
made available through or as part of the Southern website or (b) derived from or incorporating any Southern data.
“Southern Registered IP” has the meaning specified in Section 4.14(a).
“Southern Related Person” has the meaning specified in Section 4.22.
“Southern Representative” means Majique Ladnier.
“Southern Securities” means, collectively, the Southern
Shares.
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“Southern Shareholders” means, at any given time, a holder
of Southern Shares at such time.
“Southern Shares” means the shares of common stock of
Southern.
“Southern Specified Representations” has the meaning
specified in Section 10.2(a)(i).
“Southern Lock-Up Agreement” has the meaning specified in
the Recitals.
“Southern Surviving Corporation” has the meaning specified
in Section 3.1(c).
“Southern Systems” means all computer firmware, hardware,
software, and computer or information technology systems or infrastructure, networks, and data or information contained therein or transmitted thereby, and other similar items of automated, computerized, or software systems owned, licensed,
used or relied upon by Southern in the conduct of its business, including the Southern Products.
“Southern” has the meaning specified in the Preamble
hereto.
“SOX” means the U.S. Sarbanes-Oxley Act of 2002, as
amended.
“Stock Exchange Approvals” means: the conditional approval
of (a) Nasdaq and (b) Nasdaq Sweden to list the Company Common Shares to be issued as provided herein, subject only to customary listing conditions, including customary post-closing deliveries, and, if required by Nasdaq or Nasdaq Sweden as
a result of the Transactions constituting a change of control, the approval of Nasdaq and/or Nasdaq Sweden of the Company’s initial listing application in connection with the Mergers.
“Subsidiary” means, with respect to any Person, any
corporation, partnership, association or other business entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other subsidiaries of that Person or a combination thereof, or (b) if a partnership, association or
other business entity, a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons will be allocated a majority of partnership, association or other
business entity gains or losses or will be or control the managing director, managing member, general partner or other managing Person of such partnership, association or other business entity. A Subsidiary of a Person will also include any
variable interest entity which is consolidated with such Person under applicable accounting rules.
“Superior Proposal Notice” has the meaning specified in Section 8.8(d)(iii).
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“Superior Proposal” means any bona fide written Acquisition
Proposal to acquire, directly or indirectly, all or substantially all of the outstanding Company Common Shares, Southern Shares or DevvStream Shares as applicable, or all or substantially all of the assets of the Company, DevvStream or
Southern, as applicable, on a consolidated basis that did not result from a breach of Section 8.8 and: (a) that is reasonably capable of being completed, without undue delay,
taking into account all financial, legal, regulatory and other aspects of such Acquisition Proposal, (b) that is not subject to a financing condition and in respect of which it has been demonstrated to the satisfaction of the Company Board,
DevvStream Board or Southern Board, as applicable, after receipt of advice from its financial advisors and legal counsel, that adequate arrangements have been made in respect of any financing required to complete such Acquisition Proposal;
(c) that is not subject to a due diligence condition; and (d) in respect of which the Company Board, DevvStream Board or Southern Board, as applicable, determines, in its good faith judgment, after receiving the advice of its legal counsel
and its financial advisors, that it would, if consummated in accordance with its terms (but without assuming away the risk of non-completion), result in a transaction which is more favorable, from a financial point of view, to Company
Shareholders, DevvStream Shareholders or the Southern Shareholder, as applicable.
“Surviving Corporations” has the meaning specified in Section 3.1(d).
“Tax Return” means any return, report, statement, refund,
claim, declaration, information return, statement, estimate or other document filed or required to be filed with a Governmental Authority in respect of Taxes, including any Schedule or attachment thereto and including any amendments
thereof.
“Tax” or “Taxes”
means (a) all direct or indirect federal, state, provincial, territorial, local, foreign and other net income, gross income, gross receipts, sales, use, value-added, ad valorem, transfer, franchise, profits, license, lease, service, service
use, withholding, payroll, employment, social security and related contributions due in relation to the payment of compensation to employees, excise, severance, stamp, occupation, premium, property, windfall profits, alternative minimum,
estimated, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts with respect thereto, (b) any Liability for payment of
amounts described in clause (a) whether as a result of being a member of an affiliated, consolidated, combined or unitary group for any period or otherwise through operation of law and (c) any Liability for the payment of amounts described
in clauses (a) or (b) as a result of any tax sharing, tax group, tax indemnity or tax allocation agreement (excluding commercial agreements entered into in the ordinary course of business the primary purpose of which is not the sharing of
Taxes) with, or any other express or implied agreement to indemnify, any other Person.
“Taxing Authority” means the IRS, the Canada Revenue Agency
and any other domestic or foreign Governmental Authority responsible for the administration or collection of any Taxes.
“Termination Fee” means the DevvStream Termination Fee, the
Company DevvStream Termination Fee, and/or the Company Southern Termination Fee, as applicable.
“Term Sheet” has the meaning specified in Section 8.18(b)(i).
“Trade Controls” has the meaning specified in Section 6.26(a).
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“Trade Secrets” means any trade secrets, confidential
business information, concepts, ideas, designs, research or development information, processes, procedures, techniques, technical information, specifications, operating and maintenance manuals, engineering drawings, methods, know-how, data,
mask works, discoveries, inventions, modifications, extensions, improvements, customer and pricing lists, and other proprietary rights (whether or not patentable or subject to copyright, trademark, or trade secret protection).
“Trademarks” means any trademarks, service marks, trade
dress, trade names, brand names, internet domain names, designs, logos, or corporate names (including, in each case, the goodwill associated therewith), whether registered or unregistered, and all registrations and applications for
registration and renewal thereof.
“Trading Day” means any day on which the Company Common
Shares to be issued as provided herein are actually traded on the principal securities exchange or securities market on which such shares are then traded.
“Trading Market” means the Nasdaq, Nasdaq Sweden or such
other nationally recognized stock market on which the Company Common Shares to be issued as provided herein are trading at the time of determination.
“Transactions” means, collectively, the transactions
contemplated by this Agreement and the Ancillary Documents, including the Domestication and the Mergers.
“Transfer Taxes” has the meaning specified in Section 8.11(a).
“Willful Breach” has the meaning specified in Section 11.2.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, each Party has caused this Agreement to be signed and delivered as of the date first written above.
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XCF GLOBAL, INC.
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DEVVSTREAM CORP.
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SOUTHERN ENERGY RENEWABLES INC.
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DEVVSTREAM MERGER SUB INC.
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SOUTHERN MERGER SUB INC.
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[Signature Page to the Business Combination Agreement]
Exhibit A
Company Support & Lock-Up Agreement
(Attached.)
Exhibit B
DevvStream Support & Lock-Up Agreement
(Attached)
Exhibit C
Southern Support & Lock-up Agreement
(Attached.)
Schedule A
Company Core Securityholders
DevvStream Core Securityholders
Execution Version
FORM OF COMPANY SUPPORT & LOCK-UP AGREEMENT
THIS COMPANY SUPPORT & LOCK-UP AGREEMENT (this “Agreement”),
dated as of April [•], 2026, is made by and among XCF Global, Inc., a Delaware corporation (the “Company”), DevvStream Corp., an Alberta
corporation (“DevvStream”), Southern Energy Renewables Inc., a Louisiana corporation (“Southern”), and the individual or entity whose name appears in the signature block to this Agreement (the “Company Core Securityholder”).
W I T N E S S E T H:
WHEREAS, concurrently with the execution of this Agreement, the Company, DevvStream, Southern, Merger Sub 1., a Delaware corporation and
a wholly-owned subsidiary of the Company (“Merger Sub 1”), and Merger Sub 2, a Delaware corporation and a wholly-owned subsidiary of the Company(“Merger Sub 2”), are entering into a Business Combination Agreement (the “Combination Agreement”) providing for, among other things, (i) the corporate migration of DevvStream from the Province of Alberta to the State of Delaware, (ii) the merging of Merger Sub 1 with and into Southern with
Southern surviving the merger as the surviving corporation (as further described in the Combination Agreement, the “Southern Merger”) and (iii) the
merging of Merger Sub 2 with and into DevvStream with DevvStream surviving the merger as the surviving corporation (as further described in the Combination Agreement, the “DevvStream Merger”, and together with the Southern Merger, the “Mergers”).
WHEREAS, as a condition and inducement to Southern and DevvStream entering into the Combination Agreement, Southern and DevvStream have
required that the Company Core Securityholders to enter into this Agreement and abide by and perform the covenants and obligations with respect to the Company Core Securityholder’s Covered Shares;
WHEREAS, the Boards of the Company, Merger Sub 1, Merger Sub 2, DevvStream, and Southern, the Company Special Committee (as defined in
the Combination Agreement) and the DevvStream Special Committee (as defined in the Combination Agreement), have authorized the entering into of the Combination Agreement and the Ancillary Documents and approved the execution and
delivery of this Agreement and each other Support & Lock-Up Agreement in connection therewith, understanding that the execution and delivery of this Agreement by the Company Core Securityholders is a material inducement and
condition to the Company’s, Merger Sub 1’s, Merger Sub 2’s, DevvStream’s and Southern’s willingness to enter into the Combination Agreement; and
WHEREAS, concurrently with the execution and
delivery of this Agreement, Southern and DevvStream have terminated that certain Southern Support & Lock-Up Agreement, dated as of December 3, 2025, by and among Southern, DevvStream and the other parties thereto, without any
liability to any party thereto.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained,
and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
GENERAL
Section 1.01. Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Combination Agreement. The following capitalized
terms, as used in this Agreement, shall have the following meanings:
“Beneficial Ownership” has the meaning ascribed
to such term in Rule 13d-3 under the Exchange Act. The terms “Beneficially Own,” “Beneficially Owned” and “Beneficial Owner” shall each have a correlative meaning.
“Covered Shares” means, with respect to the
Company Core Securityholder, (i) the Existing Shares, and (ii) all securities issued in respect of the Existing Shares, including by dividend, distribution, reclassification, recapitalization, reorganization, split, reverse split,
subdivision, combination, substitution, exchange, conversion or merger.
“Encumbrance” means any security interest,
pledge, mortgage, lien (statutory or other), charge, option to purchase, lease or other right to acquire any interest or any claim, restriction, covenant, title defect, hypothecation, assignment, deposit arrangement or other encumbrance
of any kind or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement). The term “Encumber” shall have a correlative meaning.
“Existing Shares” means the Company Securities
Beneficially Owned by the Company Core Securityholder on the date hereof that are expressly set forth on Schedule 1 of this Agreement.
“Expiration Time” means the earliest to occur
of (a) the first date on which the Lock-up Period has expired and (b) such date and time as the Combination Agreement shall be terminated in accordance with Section 11.1 thereof.
“Permitted Transfer” means a Transfer of
Covered Shares (a) in the case of an entity, to such entity’s officers or directors or controlling shareholders or to any affiliate or family member of such entity or its officers or directors or controlling shareholders; (b) in the
case of an individual, by gift to a member of such individual’s immediate family or to a trust, the beneficiary of which is a member of such individual’s immediate family, an affiliate of such individual or to a charitable organization;
(c) in the case of an individual, by virtue of laws of descent and distribution upon death of such individual; (d) in the case of an individual, pursuant to a qualified domestic relations order; or (e) in the case of the Company Core
Securityholder, with the prior written consent of Southern and DevvStream, such consent not to be unreasonably withheld; provided, however, that all such permitted transferees must enter into a written agreement with the parties hereto agreeing to be bound by the terms of this Agreement as if a party hereto and
if such written agreement is not executed and delivered to the Company, DevvStream and Southern, such Transfer shall not be a Permitted Transfer hereunder.
“Transfer” means, directly or indirectly, to
sell, transfer, gift, assign, pledge, Encumber, hypothecate, hedge or similarly dispose of (including by merger (including by conversion into securities or other consideration), by tendering into any tender or exchange offer, by
testamentary disposition, by operation of law or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the voting of or sale, transfer, gift,
assignment, pledge, Encumbrance, hypothecation, hedge or similar disposition of (including by merger, by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise).
“Transaction Documents” means the Combination
Agreement and the Ancillary Documents.
ARTICLE 2
VOTING
Section 2.01. Agreement to Vote.
(a) The Company Core Securityholder hereby
irrevocably and unconditionally agrees that during the period between the execution of this Agreement and the earlier of (i) the termination of the Combination Agreement in accordance with its terms and (ii) the Closing, at any
meeting of the Company Securityholders, however called, including any adjournment or postponement thereof, and in connection with any written consent of shareholders of the Company, the Company Core Securityholder shall, in each case
to the fullest extent that the Covered Shares of the Company Core Securityholder are entitled to vote thereon or consent thereto:
(i) appear at each such meeting or
otherwise cause such Covered Shares to be counted as present there at for purposes of calculating a quorum, or respond to the request by the Company for written consent, as applicable; and
(ii) vote (or cause to be voted), in
person or by proxy, or by written consent, as applicable, all of such Covered Shares (A) in favor of (1) the issuance of Company Common Shares in connection with the Transactions (including the Southern Merger and the DevvStream
Merger) as required to satisfy applicable stock exchange shareholder approval rules, and approval of any other matters necessary or reasonably requested by the Company, Southern, and DevvStream in connection therewith (the “Required Transaction Approvals”), and (2) any proposal to adjourn or postpone any meeting of the shareholders of the Company at which any of the
foregoing matters are submitted for consideration and vote of the shareholders of the Company to a later date if there are not a quorum or sufficient votes for approval of such matters on the date on which the meeting is held to vote
upon any of the foregoing matters; (B) if a shareholder vote is required or requested with respect thereto, against any action or agreement
that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Transaction Documents, or of the Company Core Securityholder contained in this Agreement;
and (C) if a shareholder vote is required or requested with respect thereto, against (1) any Acquisition Proposal or other proposal that
competes with the Transactions or involves any Alternative Transaction or other transaction or business combination with a Person other than Southern, DevvStream or their Affiliates that is required or permitted to be submitted to a
vote of the Company Securityholders, (2) any other action, agreement or transaction involving the Company or any of its Affiliates that is
intended, or would reasonably be expected to, impede, interfere with, delay, postpone, adversely affect or prevent the consummation of the Transactions, or this Agreement or the performance by the Company, Merger Sub 1 or Merger Sub 2
of its obligations under the any Transaction Document or by the Company Core Securityholder of its obligations under this Agreement and (3) any proposal, action or agreement that would change in any manner the dividend policy or
capitalization of, including the voting rights of, any class of capital stock or other securities of the Company (other than, in the case of this clause (3), pursuant to the Combination Agreement or the Ancillary Documents and the
Transactions).
(b) The Company Core Securityholder hereby
(i) waives, and agrees not to exercise or assert, any dissent, appraisal or similar rights in connection with the Transactions and (ii) agrees (A) not to commence or participate in, and (B) to take all actions necessary to opt out of,
any class action with respect to, any claim, derivative or otherwise, against the Company or any of its Affiliates relating to the negotiation, execution or delivery of this Agreement, the Transaction Documents or the consummation of
the Transactions including any claim (1) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (2) alleging a breach of any fiduciary duty of the Board of the Company in connection with
this Agreement, the Transaction Documents or the Transactions.
(c) The obligations of the Company Core
Securityholder specified in this Section 2.01 shall apply whether or not (i) the Transactions, the Combination Agreement or any action described above is
recommended by the Board of the Company (or any committee thereof) or (ii) the Company Board has previously recommended the Transactions, the Combination Agreement, or any action described above and subsequently withdrawn or otherwise
changed such recommendation.
Section 2.02. No Inconsistent Agreements. The Company Core Securityholder hereby covenants and agrees that, except for this Agreement (a) it has not entered into, and shall not enter
into at any time prior to the Effective Time, any voting agreement or voting trust with respect to the Covered Shares of the Company Core Securityholder, (b) it has not granted, and shall not grant at any time prior to the Effective
Time, a proxy (except pursuant to Section 2.03 or pursuant to any proxy in form and substance reasonably satisfactory to Southern, DevvStream, and Company
delivered to the Company, directing that the Covered Shares of the Company Core Securityholder be voted in accordance with Section 2.01), consent or power
of attorney with respect to the Covered Shares of the Company Core Securityholder and (c) has not taken and shall not knowingly take any action that would make any representation or warranty of the Company Core Securityholder
contained herein untrue or incorrect or have the effect of preventing or disabling the Company Core Securityholder from performing any of its covenants or obligations under this Agreement; provided, however, that this Section 2.02
shall not preclude the Company Core Securityholder from Transferring Covered Shares pursuant to a Permitted Transfer or taking any action permitted under the last sentence of Section 4.01(a) (subject in each case to the express terms of this Agreement). The Company Core Securityholder hereby represents that all proxies, powers of attorney, instructions or other requests given by
the Company Core Securityholder prior to the execution of this Agreement in respect of the voting of the Covered Shares of the Company Core Securityholder, if any, are not irrevocable and the Company Core Securityholder hereby revokes
(and shall cause to be revoked) any and all previous proxies, powers of attorney, instructions or other requests with respect to the Company Core Securityholder’s Covered Shares.
Section 2.03. Proxy. The Company Core Securityholder hereby irrevocably appoints as its proxy and attorney-in-fact, the Company and any Person designated in writing by the Company, each
of them individually, with full power of substitution and resubstitution, until the termination of this Agreement, to vote the Covered Shares Beneficially Owned by the Company Core Securityholder in accordance with Section 2.01 in connection with any vote of the Company Securityholders in respect of any of the matters described in Section 2.01; provided, however,
that the Company Core Securityholder’s grant of the proxy contemplated by this Section 2.03 shall be effective if, and only if, the Company Core
Securityholder fails to vote such Covered Shares (or grant a consent or approval, as applicable) in accordance with Section 2.01. This proxy, if it becomes
effective, is coupled with an interest, is given as an additional inducement of the Company, Southern, and DevvStream to enter into the Combination Agreement and shall be irrevocable prior to the Effective Time, at which time any such
proxy shall terminate and be released. Neither the Company, Southern, DevvStream nor any Person may exercise this proxy on any matter, or in circumstance, except as provided above.
Section 2.04. Beneficial Ownership. As of immediately prior to the Closing, the Company Core Securityholder shall hold the number of Existing Shares set forth on Schedule 1, free and
clear of any and all liens, encumbrances, claims, security interests, pledges, charges or other restrictions of any kind.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Company Core Securityholder hereby represents and warrants to Southern, DevvStream, and the Company as to, and only as to, the
Company Core Securityholder as follows:
Section 3.01. Authorization; Validity of Agreement. If the Company Core Securityholder is not an individual, the Company Core Securityholder is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization. The Company Core Securityholder has the requisite capacity and authority to execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly authorized (to the extent authorization is required), executed and delivered by the Company Core Securityholder and, assuming this Agreement constitutes a
valid and binding obligation of Southern, DevvStream and the Company, constitutes a legal, valid and binding obligation of the Company Core Securityholder, enforceable against the Company Core Securityholder in accordance with its
terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity). [If the Company Core Securityholder is married and the Company Core Securityholder’s Covered Shares constitute community property under applicable Law, a spousal consent in substantially the
form attached hereto as Exhibit A has been duly executed and delivered by, and constitutes the valid and binding agreement of, the Company Core Securityholder’s spouse (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).]
Section 3.02. Ownership. Except as otherwise set forth on Schedule 1, unless Transferred pursuant to a
Permitted Transfer, (a) from the date hereof through and at the Expiration Time, the Existing Shares will be Beneficially Owned by the Company Core Securityholder, and (b) the Company Core Securityholder has good and valid title to
Existing Shares, if any, free and clear of any Encumbrances other than pursuant to this Agreement, or under applicable federal, provincial or state securities Laws. The Company Core Securityholder has and will have at all times
through the Expiration Time sole voting power (including the right to control such vote as contemplated herein), sole power of disposition, sole power to issue instructions with respect to the matters set forth in Article 2, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Company Core Securityholder’s
Existing Shares, except with respect to any Existing Shares that are Transferred pursuant to a Permitted Transfer.
Section 3.03. No Violation. The execution and delivery of this Agreement by the Company Core Securityholder does not, and the performance by the Company Core Securityholder of its
obligations under this Agreement will not, (a) conflict with or violate any applicable Law or, if applicable, any certificate, notice of articles or articles of incorporation, as applicable, or bylaws or other equivalent
organizational documents of the Company Core Securityholder, or (b) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Encumbrance upon any of the
properties or assets (including any Covered Shares), of the Company Core Securityholder under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which the Company Core Securityholder is a party or by which the Company Core Securityholder or any of its, his or her properties or assets may be bound, except in each case as would not prevent or delay
consummation of the Mergers and the other Transactions or impair the ability of the Company Core Securityholder to perform its, his or her obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
Section 3.04. Consents and Approvals. The execution and delivery of this Agreement by the Company Core Securityholder does not, and the performance by the Company Core Securityholder of
its, his or her obligations under this Agreement and the consummation by the Company Core Securityholder of the transactions contemplated hereby will not, require the Company Core Securityholder to obtain any consent, approval,
authorization or permit of, or to make any filing with or notification to, any Person.
Section 3.05. Absence of Litigation. As of the date hereof, there is no litigation, action, suit or proceeding pending or, to the knowledge of the Company Core Securityholder, threatened
against or affecting the Company Core Securityholder or any of its Affiliates before or by any Governmental Authority that would reasonably be expected to impair the ability of the Company Core Securityholder to perform its, his or
her obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
Section 3.06. Reliance by Company, DevvStream, and Southern. The Company Core Securityholder understands and acknowledges that the Company, DevvStream and Southern are entering into the
Combination Agreement in reliance upon the execution and delivery of this Agreement by the Company Core Securityholder and the representations and warranties of the Company Core Securityholder contained herein. The Company Core
Securityholder understands and acknowledges that the Combination Agreement governs the terms of the Mergers and the other transactions contemplated thereby.
Section 3.07. Adequate Information. The Company Core Securityholder is a sophisticated holder with respect to the Covered Shares and has adequate information concerning the transactions
contemplated by the Combination Agreement and concerning the business and financial condition of Southern, DevvStream, and the Company to make an informed decision regarding the matters referred to herein and has independently, based
on such information as the Company Core Securityholder has deemed appropriate, made the Company Core Securityholder’s own analysis and decision to enter into this Agreement.
ARTICLE 4
OTHER COVENANTS
Section 4.01. Prohibition on Transfers; Other Actions.
(a) The Company Core Securityholder agrees
that, from the date hereof until the Effective Time (and without limitation of the provisions set forth in Section 4.01(b)), the Company Core Securityholder
shall not (i) Transfer or permit the Transfer of the Company Core Securityholder’s Covered Shares, Beneficial Ownership thereof or any other interest therein unless (A) such Transfer is a Permitted Transfer effected in accordance with
the terms of this Agreement, and (B) such Permitted Transfer would not violate, conflict with or otherwise have the effects described in clause (ii) or (iii) below; (ii) enter into any agreement, arrangement or understanding with any
Person, or take any other action, that violates or would reasonably be expected to violate or conflict, or result in or give rise to a violation of, (A) the Company Core Securityholder’s representations, warranties, covenants and
obligations under this Agreement or (B) the Company’s, Merger Sub 1’s, or Merger Sub 2’s representations, warranties, covenants or obligations under this Agreement or Ancillary Documents; or (iii) take any action that is intended, or
would reasonably be expected to, impede, interfere with, delay, postpone, adversely affect or restrict the Company Core Securityholder’s legal power, authority and right to comply with and perform its covenants and obligations under
this Agreement or the Company’s, Merger Sub 1’s, or Merger Sub 2’s covenants and obligations under any Transaction Document or the consummation of the Transaction. Any Transfer in violation of this provision shall be void ab initio. Until the earlier of the termination of the Combination Agreement in accordance with its terms and the Effective Time (and without
limitation of the provisions set forth in Section 4.01(b)), the Company Core Securityholder (x) shall not request that the Company register the Transfer
(book-entry or otherwise) of any of the Company Core Securityholder’s Covered Shares or any certificate in respect thereof and (y) hereby consents to the entry of stop transfer instructions by the Company with respect to any Transfer
of the Company Core Securityholder’s Covered Shares, unless, in each case, such Transfer is a Permitted Transfer effected in accordance with the terms of this Agreement. Notwithstanding anything in this Agreement to the contrary,
nothing in this Agreement shall require any action, or restrict the Company Core Securityholder, with respect to any Covered Shares subject to any pledge or security interest in effect as of the date hereof as set forth on Schedule 1 to the extent such action or restriction is inconsistent with the terms of such pledge or security interest; provided that, unless and until there is a bona fide foreclosure with respect to such pledge
or security interest, the Company Core Securityholder agrees that there are no terms of any such pledge or security interest that will prevent or impair the Company Core Securityholder from complying with any obligation, agreement or
covenant set forth herein.
(b) The Company Core Securityholder shall
not Transfer, or permit any Transfer, of the Company Core Securityholder’s Covered Shares (unless such Transfer is a Permitted Transfer effected in accordance with the terms of this Agreement) until the earlier of (i) the receipt of
the Required Transaction Approvals, and (ii) the termination of the Combination Agreement in accordance with its terms (such period, the “Lock-up Period”).
ARTICLE 5
MISCELLANEOUS
Section 5.01. Termination. This Agreement shall remain in effect until the Expiration Time, at which time this Agreement shall terminate in its entirety and be of no further force or
effect; provided, however, that any proxy granted hereunder shall be
automatically and immediately terminated and released at the Effective Time. Neither the provisions of this Section 5.01 nor the termination of this
Agreement shall (a) relieve any party hereto from any liability of such party to any other party incurred prior to such termination or expiration, (b) relieve any party hereto from any liability to any other party arising out of or in
connection with any breach of this Agreement prior to such termination or expiration or fraud, or (c) terminate the obligations under Section 2.01(b).
Section 5.02. No Agreement as Director or Officer. Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall (a) limit, restrict or otherwise
affect the Company Core Securityholder or any Affiliate or Representative of the Company Core Securityholder in his or her capacity as a director or officer of the Company from acting (or not acting) in such capacity or voting in the
capacity as a director in such person’s sole discretion on any matter, including in respect of the Combination Agreement, and no such actions or votes shall be deemed a breach of this Agreement, or (b) be construed to prohibit, limit
or restrict the Company Core Securityholder or any Affiliates or Representatives of the Company Core Securityholder from exercising fiduciary duties as a director or officer of the Company solely in their capacity as such, and not
acting in their capacity as a securityholder. Without limiting the foregoing, it is the intention of the parties that this Agreement shall apply to the Company Core Securityholder solely in the Company Core Securityholder’s capacity
as a Company Securityholder.
Section 5.03. No Ownership Interest. The Company Core Securityholder has agreed to enter into this Agreement and act in the manner specified in this Agreement for consideration. Except
as expressly set forth in this Agreement, all rights and all ownership and economic benefits of and relating to the Company Core Securityholder’s Covered Shares shall remain vested in and belong to the Company Core Securityholder, and
except as expressly set forth in this Agreement, nothing herein shall, or shall be construed to, grant the Company, Southern or DevvStream any power, sole or shared, to direct or control the voting or disposition of any of such
Covered Shares.
Section 5.04. Notices. All notices, requests, claims, demands and other communications hereunder shall be given (and shall be deemed to have been duly received if given) by hand
delivery in writing, by facsimile transmission with confirmation of receipt, by email transmission with confirmation of receipt or by recognized overnight or international courier service, as follows:
if to DevvStream:
DevvStream Holdings Inc.
2133-1177 West Hastings Street
Vancouver, BC V6E 2K3
Attention: Sunny Trinh
Email: [email protected]
with a copy to (which shall not constitute notice):
Morrison & Foerster LLP
12531 High Bluff Drive
San Diego, CA 92130
Attention: Shai Kalansky
Email: [email protected]
and with a copy (which will not constitute notice) to:
McMillan LLP
Royal Centre, Suite 1500
1055 West Georgia Street, PO Box 11117
Vancouver, British Columbia
Canada V6E 4N7
Attention: Mark Neighbor
Email: [email protected]
if to Southern:
Southern Energy Renewables Inc.
201 Rue Beauregard STE 202,
Lafayette, LA 70508 US
Attn: Majique Ladnier
Email: [email protected]
with a copy to (which shall not constitute notice):
Whitley LLP
24285 Katy Freeway
Suite 300, Katy, TX 77494
Attention: Samuel Whitley
Email: [email protected]
if to the Company:
Southern Energy Renewables Inc.
201 Rue Beauregard STE 202,
Lafayette, LA 70508 US
Attn: Majique Ladnier
Email: [email protected]
with a copy to (which shall not constitute notice):
Whitley LLP
24285 Katy Freeway
Suite 300, Katy, TX 77494
Attention: Samuel Whitley
Email: [email protected]
with a copy to (which shall not constitute notice):
Paul Hastings LLP
200 Park Avenue
New York, New York 10166
Attention: Gil Savir
Email: [email protected]
and with a copy to (which will not constitute notice):
Stikeman Elliott LLP
5300 Commerce Court West
199 Bay Street
Toronto, Ontario, M5L 1B9, Canada
Attention: John Ciardullo; J.R. Laffin
Email: [email protected];
If to the Company Special Committee:
XCF Global, Inc.
2500 CityWest Blvd. Suite 150-138
Houston, TX 77042
Attn: Chris Cooper;
Email: [email protected]
and with a copy (which will not constitute notice) to:
Shumaker, Loop & Kendrick, LLP
101 East Kennedy Boulevard, Suite 2800
Tampa FL 33602
Attention: Julio C. Esquivel
and if to the Company Core Securityholder, to the address set forth on Schedule 1,
or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
Section 5.05. Interpretation. When reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the
words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “or” shall not be exclusive. Whenever used in this Agreement, any noun or pronoun shall be deemed to include
the plural as well as the singular and to cover all genders. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to
be drafted.
Section 5.06. Counterparts. This Agreement may be executed in counterparts (which may be delivered by facsimile or other electronic transmission), each of which shall be deemed to be an
original, but all of which, taken together, shall constitute one and the same agreement.
Section 5.07. Entire Agreement. This Agreement and, to the extent referenced herein, the Transaction Documents, together with the several agreements and other documents and instruments
referred to herein or therein or attached hereto or thereto, constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, both oral and
written, among the parties with respect to the subject matter hereof and thereof. Except for the representations and warranties expressly contained in Article 3,
the Company Core Securityholder makes no express or implied representation or warranty with respect to the Company Core Securityholder or the Covered Shares, or otherwise.
Section 5.08. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be governed by,
construed and enforced in accordance with the Laws of Delaware and the federal Laws applicable therein, without regard to any choice of law or conflict of laws principles thereof that would cause the application of the Law of any
jurisdiction other than those of the State of Delaware. Each Party irrevocably attorns and submits to the non-exclusive jurisdiction of the Delaware Court of Chancery in and for New Castle and waives objection to the venue of any
proceeding in such court or that such court provides an inconvenient forum.
(b) EACH PARTY HERETO HEREBY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (II)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 5.09. Amendment; Waiver. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective, but such waiver shall not operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
Section 5.10. Remedies. The parties hereto agree that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any provision of
this Agreement were not performed in accordance with their specific terms hereof or were otherwise breached and that it is accordingly agreed that, prior to termination of this Agreement, the parties shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to specific performance of the terms hereof, in addition to any other remedy at law or equity.
Section 5.11. Severability. If any term or other provision of this Agreement is held to be invalid, illegal or incapable of being enforced by any rule of law or public policy in any
jurisdiction, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect and shall not be affected thereby, so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced in any jurisdiction, this Agreement will be reformed, construed and
enforced in such jurisdiction so as to effect the original intent of the parties as closely as possible to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.
Section 5.12. Successors and Assigns; Third Party Beneficiaries. Other than by the Company Core Securityholder to a transferee pursuant to a Permitted Transfer or any assignment,
delegation or other transfer effected under the Combination Agreement, no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto. No
provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective heirs, executors, personal legal
representatives, successors and permitted assigns. For the avoidance of doubt and without limiting Southern’s and DevvStream’s rights hereunder, Southern and DevvStream shall be a beneficiaries of, and entitled to enforce, the rights
of the Company under Section 2.03 (Proxy) to the extent not being enforced by the Company.
Section 5.13. Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.
Section 5.14. Non-Recourse. Notwithstanding anything to the contrary herein or in any other documents delivered pursuant hereto, (a) this Agreement may be enforced only against, and any
claim based upon, arising out of or related to a breach of this Agreement by the Company Core Securityholder may be made only against, the Company Core Securityholder (or in each case its Permitted Transferees), and (b) none of the
Company Core Securityholder or its Affiliates shall have any liability for any liabilities of the parties hereto for any such claims (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any oral
representations made or alleged to be made in connection herewith (other than any such Permitted Transferee).
Section 5.15. Acknowledgment of Counsel. Each party to this Agreement hereby (a) acknowledges that (i) Morrison & Foerster LLP and McMillan LLP represent and serve as counsel for
only DevvStream (and no other party to this Agreement) with respect to this Agreement, the Combination Agreement and the Transactions, (ii) Paul Hastings LLP and Stikeman Elliott LLP represent and serve as counsel for only the Company
(and no other party to this Agreement) with respect to this Agreement, the Combination Agreement and the Transactions, (iii) Shumaker, Loop & Kendrick LLP represent and serve as counsel for only the Company Special Committee (and
no other party to this Agreement) with respect to this Agreement, the Combination Agreement and the Transactions, (iv) Whitley LLP represents and serves as counsel for only Southern (and no other party to this Agreement) with respect
to this Agreement, the Combination Agreement and the Transactions and (v) such party has either sought the advice of their own counsel or has had the opportunity to seek their own counsel and has chosen not to do so, (b) gives their
informed consent to Morrison & Foerster LLP’s and McMillan LLP’s representation of DevvStream in connection with this Agreement, the Combination Agreement and the Transactions, (c) gives their informed consent to Paul Hastings
LLP’s and Stikeman Elliott LLP’s representation of the Company in connection with this Agreement, the Combination Agreement and the Transactions, (d) gives their informed consent to Shumaker, Loop & Kendrick LLP’s representation
of the Company Special Committee in connection with this Agreement, the Combination Agreement and the Transactions, and (e) gives their informed consent to Whitley LLP’s representation of Southern in connection with this Agreement,
the Combination Agreement and the Transactions.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where applicable, by their respective officers or other
authorized Person thereunto duly authorized) as of the date first written above.
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XCF GLOBAL, INC.
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By:
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Name:
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Title
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DEVVSTREAM CORP.
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By:
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Name:
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Title:
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SOUTHERN ENERGY RENEWABLES INC.
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By:
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Name:
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Title:
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[Signature Page to Company Support & Lock-up Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where applicable, by their respective officers or other
authorized Person thereunto duly authorized) as of the date first written above.
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COMPANY CORE SECURITYHOLDER:
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[____________]
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By:
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Name:
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Title:
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[Signature Page to Company Support & Lock-up Agreement]
Schedule 1
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Name of Company
Core Securityholder
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Existing Shares
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Address for Notice
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[ ]
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[ ]
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[ ]
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Exhibit A
Consent of Spouse
I, _____________________, spouse of [Name of Company Core Securityholder], have read and approved that certain Support and Lock-up
Agreement (the “Agreement”), dated as of [ ], 2026, by and among DevvStream Corp. Inc., an Alberta corporation, Southern Energy Renewables Inc., a Louisiana
corporation, XCF Global, Inc., a Delaware corporation and the Company Core Securityholder. In consideration of the right of my spouse to participate in the
transactions described in the Agreement, I hereby appoint my spouse as my attorney-in-fact in respect to the exercise of any rights under the Agreement insofar as I may have any rights under the community property laws of the
[jurisdiction] or similar laws relating to marital property in effect in the [state / country] of our residence as of the date of the signing of the foregoing Agreement.
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Dated:
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, 2026 |
By:
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Name:
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Execution Version
SOUTHERN SUPPORT & LOCK-UP AGREEMENT
THIS SOUTHERN SUPPORT & LOCK-UP AGREEMENT (this “Agreement”), dated as of April [•] 2026, is made by and among, XCF Global, Inc., a Delaware corporation (the “Company”),
DevvStream Corp., an Alberta corporation (“DevvStream”), Southern Energy Renewables Inc., a Louisiana corporation (“Southern”), and the individual or entity whose name appears in the signature block to
this Agreement (the “Securityholder”).
W I T N E S S E T H:
WHEREAS, concurrently with the execution of this Agreement, the Company, DevvStream, Southern, Southern Merger Sub Inc., a Delaware
corporation and a wholly-owned subsidiary of the Company (“Merger Sub 1”), and DevvStream Merger Sub Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company (“Merger Sub 2”), are entering into a Business Combination Agreement (the “Combination Agreement”) providing for, among other things, (i) the corporate migration of DevvStream from the Province of Alberta to the State of Delaware, (ii) the
merging of Merger Sub 1 with and into Southern with Southern surviving the merger as the surviving corporation (as further described in the Combination Agreement, the “Southern Merger”) and (iii) the merging of Merger Sub 2 with and into DevvStream with DevvStream surviving the merger as the surviving corporation (as further described in the Combination Agreement, the
“DevvStream Merger”, and together with the Southern Merger, the “Mergers”).
WHEREAS, as a condition and inducement to the Company and DevvStream entering into the Combination Agreement, the Company and
DevvStream have required that the Securityholder enter into this Agreement and abide by and perform the covenants and obligations with respect to the Securityholder’s Covered Shares; and
WHEREAS, the Boards of the Company, Merger Sub 1, Merger Sub 2, DevvStream, and Southern, the Company Special Committee and the
DevvStream Special Committee, have authorized the entering into of the Combination Agreement and the Ancillary Documents and approved the execution and delivery of this Agreement and each other Support & Lock-Up Agreement in
connection therewith, understanding that the execution and delivery of this Agreement by the Securityholder is a material inducement and condition to the Company’s, DevvStream’s and Southern’s willingness to enter into the
Combination Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein
contained, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
GENERAL
Section 1.01. Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Combination Agreement. The following capitalized
terms, as used in this Agreement, shall have the following meanings:
“Beneficial Ownership” has the meaning
ascribed to such term in Rule 13d-3 under the Exchange Act. The terms “Beneficially Own,” “Beneficially Owned” and “Beneficial Owner” shall each have a correlative meaning.
“Covered Shares” means, with respect to the
Securityholder, (i) the Existing Shares, (ii) any Company Securities that the Securityholder acquires Beneficial Ownership of on or after the date hereof, including the Southern Consideration Shares received by the Securityholder in
the Transactions, (iii) any options, restricted stock units, warrants or other securities or rights which are convertible into or exercisable or exchangeable for DevvStream Shares or DevvStream Convertible Securities (together, “DevvStream Securities”) that the Securityholder acquires Beneficial Ownership of on or after the date hereof, and (iv) all securities issued in
respect of the foregoing, including by dividend, distribution, reclassification, recapitalization, reorganization, split, reverse split, subdivision, combination, substitution, exchange, conversion or merger.
“Encumbrance” means any security interest,
pledge, mortgage, lien (statutory or other), charge, option to purchase, lease or other right to acquire any interest or any claim, restriction, covenant, title defect, hypothecation, assignment, deposit arrangement or other
encumbrance of any kind or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement). The term “Encumber” shall have a correlative meaning.
“Existing Shares” means (i) all DevvStream
Securities Beneficially Owned by the Securityholder on the date hereof, and (ii) all options, restricted stock units, warrants or other securities or rights that are convertible into or exchangeable or exercisable for any DevvStream
Securities that are Beneficially Owned by the Securityholder on the date hereof. The Securityholder’s Existing Shares are set forth on Schedule 1 of this
Agreement.
“Expiration Time” means the earliest to
occur of (a) the first date on which the Lock-up Period has expired and (b) such date and time as the Combination Agreement shall be terminated in accordance with Section
11.1 thereof.
“Permitted Transfer” means a Transfer of
Covered Shares (a) in the case of an entity, to such entity’s officers or directors or controlling shareholders or to any affiliate or family member of such entity or its officers or directors or controlling shareholders; (b) in the
case of an individual, by gift to a member of such individual’s immediate family or to a trust, the beneficiary of which is a member of such individual’s immediate family, an affiliate of such individual or to a charitable
organization; (c) in the case of an individual, by virtue of laws of descent and distribution upon death of such individual; (d) in the case of an individual, pursuant to a qualified domestic relations order; (e) of Unrestricted
Shares (as defined below) following the Closing; or (f) in the case of the Securityholder, with the prior written consent of the Company and DevvStream, such consent not to be unreasonably withheld; provided, however, that all such permitted transferees receiving Covered Shares, other than in a Transfer
covered by clause (e) must enter into a written agreement with the parties hereto agreeing to be bound by the terms of this Agreement as if a party hereto and if such written agreement is not executed and delivered to the Company,
DevvStream and Southern, such Transfer shall not be a Permitted Transfer hereunder.
“Transfer” means, directly or indirectly,
to sell, transfer, gift, assign, pledge, Encumber, hypothecate, hedge or similarly dispose of (including by merger (including by conversion into securities or other consideration), by tendering into any tender or exchange offer, by
testamentary disposition, by operation of law or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the voting of or sale, transfer, gift,
assignment, pledge, Encumbrance, hypothecation, hedge or similar disposition of (including by merger, by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise).
“Transaction Documents” means the
Combination Agreement and the Ancillary Documents.
ARTICLE 2
VOTING
Section 2.01. Agreement to Vote.
(a) The Securityholder hereby
irrevocably and unconditionally agrees that during the period between the execution of this Agreement and the earlier of (i) the termination of the Combination Agreement in accordance with its terms and (ii) the Closing, at any
meeting of the DevvStream Securityholders, however called, including any adjournment or postponement thereof, and in connection with any written consent of shareholders of DevvStream, the DevvStream Core Securityholder shall, in
each case to the fullest extent that the Covered Shares of the DevvStream Securityholder are entitled to vote thereon or consent thereto:
(i) appear at each such meeting or
otherwise cause such Covered Shares to be counted as present there at for purposes of calculating a quorum, or respond to the request by DevvStream for written consent, as applicable; and
(ii) vote (or cause to be voted), in
person or by proxy, or by written consent, as applicable, all of such Covered Shares (A) in favor of (1) the adoption and approval of the Domestication and the DevvStream Merger and approval of any other matters necessary or
reasonably requested by the Company, Southern and DevvStream in connection therewith, and (2) any proposal to adjourn or postpone any meeting of the shareholders of DevvStream at which any of the foregoing matters are submitted
for consideration and vote of the shareholders of DevvStream to a later date if there are not a quorum or sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing
matters; (B) if a shareholder vote is required or requested with respect thereto, against any action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or agreement of DevvStream contained in the Transaction Documents, or of the Securityholder contained in this Agreement; and (C) if a shareholder vote is
required or requested with respect thereto, against (1) any Acquisition Proposal or other proposal that competes with the Transactions or
involves any Alternative Transaction or other transaction or business combination with a Person other than Southern, the Company or their Affiliates that is required or permitted to be submitted to a vote of the DevvStream
Securityholders, (2) any other action, agreement or transaction involving the DevvStream or any of its Affiliates that is intended, or would
reasonably be expected to, impede, interfere with, delay, postpone, adversely affect or prevent the consummation of the Transactions, or this Agreement or the performance by DevvStream of its obligations under the any Transaction
Document or by the Securityholder of its obligations under this Agreement and (3) any proposal, action or agreement that would change in any manner the dividend policy or capitalization of, including the voting rights of, any
class of capital stock or other securities of DevvStream (other than, in the case of this clause (3), pursuant to the Combination Agreement or the Ancillary Documents and the Transactions).
(b) The Securityholder hereby (i)
waives, and agrees not to exercise or assert, any dissent, appraisal or similar rights in connection with the Transactions and (ii) agrees (A) not to commence or participate in, and (B) to take all actions necessary to opt out of,
any class action with respect to, any claim, derivative or otherwise, against DevvStream or any of its Affiliates relating to the negotiation, execution or delivery of this Agreement, the Transaction Documents or the consummation
of the Transactions including any claim (1) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (2) alleging a breach of any fiduciary duty of the DevvStream Board in connection
with this Agreement, the Transaction Documents or the Transactions.
(c) The obligations of the Securityholder
specified in this Section 2.01 shall apply whether or not (i) the Transactions, the Combination Agreement or any action described above is recommended
by the DevvStream Board (or any committee thereof) or (ii) the DevvStream Board has previously recommended the Transactions, the Combination Agreement, or any action described above and subsequently withdrawn or otherwise changed
such recommendation.
Section 2.02. No Inconsistent Agreements. The Securityholder hereby covenants and agrees that, except for this Agreement (a) it has not entered into, and shall not enter into
at any time prior to the Effective Time, any voting agreement or voting trust with respect to the Covered Shares of the Securityholder, (b) it has not granted, and shall not grant at any time prior to the Effective Time, a proxy
(except pursuant to Section 2.03 or pursuant to any proxy in form and substance reasonably satisfactory to Southern, DevvStream and Company delivered to
DevvStream, directing that the Covered Shares of the Securityholder be voted in accordance with Section 2.01), consent or power of attorney with respect
to the Covered Shares of the Securityholder and (c) has not taken and shall not knowingly take any action that would make any representation or warranty of the Securityholder contained herein untrue or incorrect or have the effect
of preventing or disabling the Securityholder from performing any of its covenants or obligations under this Agreement; provided, however, that this Section 2.02 shall not preclude the Securityholder from
Transferring Covered Shares pursuant to a Permitted Transfer or taking any action permitted under the last sentence of Section 4.01(a) (subject in each
case to the express terms of this Agreement). The Securityholder hereby represents that all proxies, powers of attorney, instructions or other requests given by the Securityholder prior to the execution of this Agreement in
respect of the voting of the Covered Shares of the Securityholder, if any, are not irrevocable and the Securityholder hereby revokes (and shall cause to be revoked) any and all previous proxies, powers of attorney, instructions or
other requests with respect to the Securityholder’s Covered Shares.
Section 2.03. Proxy. The Securityholder hereby irrevocably appoints as its proxy and attorney-in-fact, DevvStream and any Person designated in writing by DevvStream, each of
them individually, with full power of substitution and resubstitution, until the termination of this Agreement, to vote the Covered Shares Beneficially Owned by the Securityholder in accordance with Section 2.01 in connection with any vote of the DevvStream Securityholders in respect of any of the matters described in Section 2.01; provided, however, that the
Securityholder’s grant of the proxy contemplated by this Section 2.03 shall be effective if, and only if, the Securityholder fails to vote such Covered
Shares (or grant a consent or approval, as applicable) in accordance with Section 2.01. This proxy, if it becomes effective, is coupled with an
interest, is given as an additional inducement of the Company, Southern and DevvStream to enter into the Combination Agreement and shall be irrevocable prior to the Effective Time, at which time any such proxy shall terminate and
be released. Neither the Company, Southern, DevvStream nor any Person may exercise this proxy on any matter, or in circumstance, except as provided above.
Section 2.04. Beneficial Ownership. As of immediately prior to the Closing, the Securityholder shall hold at least a majority of the outstanding Southern Shares. As of
immediately prior to the Closing, the Securityholder shall hold the number of Existing Shares set forth on Schedule 1, free and clear of any and all liens, encumbrances, claims, security interests, pledges, charges or other
restrictions of any kind.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Securityholder hereby represents and warrants to Southern, DevvStream and the Company as to, and only as to, the Securityholder
as follows:
Section 3.01. Authorization; Validity of Agreement. If the Securityholder is not an individual, the Securityholder is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization. The Securityholder has the requisite capacity and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized (to the extent authorization is required), executed and delivered by the Securityholder and, assuming this Agreement constitutes a valid and binding obligation of
Southern, DevvStream and the Company, constitutes a legal, valid and binding obligation of the Securityholder, enforceable against the Securityholder in accordance with its terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).
Section 3.02. Ownership. Except as otherwise set forth on Schedule 1, unless Transferred pursuant
to a Permitted Transfer, (a) the Existing Shares, if any, are all of the Covered Shares Beneficially Owned by the Securityholder on the date hereof, (b) from the date hereof through and at the Effective Time, the Existing Shares
will be Beneficially Owned by the Securityholder, and (c) the Securityholder has good and valid title to the Existing Shares, if any, free and clear of any Encumbrances other than pursuant to this Agreement, or under applicable
federal, provincial or state securities Laws. The Securityholder has and will have at all times through the Effective Time sole voting power (including the right to control such vote as contemplated herein), sole power of
disposition, sole power to issue instructions with respect to the matters set forth in Article 2, and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the Securityholder’s Existing Shares, except with respect to any Existing Shares that are Transferred pursuant to a Permitted Transfer.
Section 3.03. No Violation. The execution and delivery of this Agreement by the Securityholder does not, and the performance by the Securityholder of its obligations under this
Agreement will not, (a) conflict with or violate any applicable Law or, if applicable, any certificate, notice of articles or articles of incorporation, as applicable, or bylaws or other equivalent organizational documents of the
Securityholder, or (b) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default)
under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Encumbrance upon any of the properties or assets (including any Covered
Shares) of the Securityholder under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which the Securityholder is a
party or by which the Securityholder or any of its, his or her properties or assets may be bound, except in each case as would not prevent or delay consummation of the Mergers and the other Transactions or impair the ability of
the Securityholder to perform its, his or her obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
Section 3.04. Consents and Approvals. The execution and delivery of this Agreement by the Securityholder does not, and the performance by the Securityholder of its, his or her
obligations under this Agreement and the consummation by the Securityholder of the transactions contemplated hereby will not, require the Securityholder to obtain any consent, approval, authorization or permit of, or to make any
filing with or notification to, any Person.
Section 3.05. Absence of Litigation. As of the date hereof, there is no litigation, action, suit or proceeding pending or, to the knowledge of the Securityholder, threatened against
or affecting the Securityholder or any of its Affiliates before or by any Governmental Authority that would reasonably be expected to impair the ability of the Securityholder to perform its, his or her obligations hereunder or to
consummate the transactions contemplated hereby on a timely basis.
Section 3.06. Reliance by Company, DevvStream and Southern. The Securityholder understands and acknowledges that the Company, DevvStream and Southern are entering into the
Combination Agreement in reliance upon the execution and delivery of this Agreement by the Securityholder and the representations and warranties of the Securityholder contained herein. The Securityholder understands and
acknowledges that the Combination Agreement governs the terms of the Mergers, and the other transactions contemplated thereby.
Section 3.07. Adequate Information. The Securityholder is a sophisticated holder with respect to the Covered Shares and has adequate information concerning the transactions
contemplated by the Combination Agreement and concerning the business and financial condition of Southern, DevvStream and the Company to make an informed decision regarding the matters referred to herein and has independently,
based on such information as the Securityholder has deemed appropriate, made the Securityholder’s own analysis and decision to enter into this Agreement.
ARTICLE 4
OTHER COVENANTS
Section 4.01. Prohibition on Transfers; Other Actions.
(a) The Securityholder agrees that,
from the date hereof until the Effective Time (and without limitation of the provisions set forth in Section 4.01(b)), the Securityholder shall not (i)
Transfer or permit the Transfer of the Securityholder’s Covered Shares, Beneficial Ownership thereof or any other interest therein unless (A) such Transfer is a Permitted Transfer effected in accordance with the terms of this
Agreement and (B) such Permitted Transfer would not violate, conflict with or otherwise have the effects described in clause (ii) or (iii) below; (ii) enter into any agreement, arrangement or understanding with any Person, or take
any other action, that violates or would reasonably be expected to violate or conflict, or result in or give rise to a violation of, (A) the Securityholder’s representations, warranties, covenants and obligations under this
Agreement or (B) Southern’s representations, warranties, covenants or obligations under this Agreement or Ancillary Documents; or (iii) take any action that is intended, or would reasonably be expected to, impede, interfere with,
delay, postpone, adversely affect or restrict the Securityholder’s legal power, authority and right to comply with and perform its covenants and obligations under this Agreement or the Company’s, Merger Sub 1’s, Merger Sub 2’s, or
DevvStream’s covenants and obligations under any Transaction Document or the consummation of the Transaction. Any Transfer in violation of this provision shall be void ab initio. Until the earlier of the termination of the Combination Agreement in accordance with its terms and the Effective Time (and without limitation of the provisions set forth in Section 4.01(b)), the Securityholder (x) shall not request that DevvStream register the Transfer (book-entry or otherwise) of any of the Securityholder’s
Covered Shares or any certificate in respect thereof and (y) hereby consents to the entry of stop transfer instructions by DevvStream with respect to any Transfer of the Securityholder’s Covered Shares, unless, in each case, such
Transfer is a Permitted Transfer effected in accordance with the terms of this Agreement. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall require any action, or restrict the
Securityholder, with respect to any Covered Shares subject to any pledge or security interest in effect as of the date hereof as set forth on Schedule 1
to the extent such action or restriction is inconsistent with the terms of such pledge or security interest; provided that, unless and until there is a
bona fide foreclosure with respect to such pledge or security interest, the Securityholder agrees that there are no terms of any such pledge
or security interest that will prevent or impair the Securityholder from complying with any obligation, agreement or covenant set forth herein.
(b) The Securityholder shall not
Transfer, or permit any Transfer, of the Securityholder’s Covered Shares (unless such Transfer is a Permitted Transfer effected in accordance with the terms of this Agreement) until the earlier of (i) the date that is six (6)
months after the Closing, and (ii) the date on which the Company (or its successor) completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of the Company’s (or such
successor’s) shareholders having the right to exchange their securities for cash, securities or other property (the “Lock-up Period”). Notwithstanding the foregoing, the restrictions set forth in this Section 4.01(b)
shall not apply to fifty percent (50%) of the Southern Consideration Shares received by the Securityholder in the Transaction (the “Unrestricted
Shares”). Any Permitted Transfer of Unrestricted Shares shall be affected in compliance with applicable law, including without limitation, effecting such sales pursuant to an effective resale registration statement or
Rule 144 (including the manner-of-sale, volume, notice and public information requirements applicable to affiliates), if available.
Section 4.02. Notice of Acquisitions. The Securityholder agrees to notify Southern, DevvStream and the Company as promptly as reasonably practicable of the number of any
additional shares of DevvStream or other securities convertible into or exercisable or exchangeable for shares of DevvStream of which the Securityholder acquires Beneficial Ownership on or after the date hereof and prior to the
Effective Time.
ARTICLE 5
MISCELLANEOUS
Section 5.01. Termination. This Agreement shall remain in effect until the Expiration Time, at which time this Agreement shall terminate in its entirety and be of no further
force or effect; provided, however, that any proxy granted hereunder shall
be automatically and immediately terminated and released at the Effective Time. Neither the provisions of this Section 5.01 nor the termination of this
Agreement shall (a) relieve any party hereto from any liability of such party to any other party incurred prior to such termination or expiration, (b) relieve any party hereto from any liability to any other party arising out of
or in connection with any breach of this Agreement prior to such termination or expiration or fraud, or (c) terminate the obligations under Section 2.01(b).
Section 5.02. No Agreement as Director or Officer. Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall (a) limit, restrict or
otherwise affect the Securityholder or any Affiliate or Representative of the Securityholder in his or her capacity as a director or officer of the Company or DevvStream from acting (or not acting) in such capacity or voting in
the capacity as a director in such person’s sole discretion on any matter, including in respect of the Combination Agreement, and no such actions or votes shall be deemed a breach of this Agreement, or (b) be construed to
prohibit, limit or restrict the Securityholder or any Affiliates or Representatives of the Securityholder from exercising fiduciary duties as a director or officer of the Company or DevvStream solely in their capacity as such, and
not acting in their capacity as a securityholder. Without limiting the foregoing, it is the intention of the parties that this Agreement shall apply to the Securityholder solely in the Securityholder’s capacity as a DevvStream
Securityholder.
Section 5.03. No Ownership Interest. The Securityholder has agreed to enter into this Agreement and act in the manner specified in this Agreement for consideration. Except as
expressly set forth in this Agreement, all rights and all ownership and economic benefits of and relating to the Securityholder’s Covered Shares shall remain vested in and belong to the Securityholder, and except as expressly set
forth in this Agreement, nothing herein shall, or shall be construed to, grant the Company, Southern or DevvStream any power, sole or shared, to direct or control the voting or disposition of any of such Covered Shares.
Section 5.04. Notices. All notices, requests, claims, demands and other communications hereunder shall be given (and shall be deemed to have been duly received if given) by
hand delivery in writing, by facsimile transmission with confirmation of receipt, by email transmission with confirmation of receipt or by recognized overnight or international courier service, as follows:
if to DevvStream:
DevvStream Holdings Inc.
2133-1177 West Hastings Street
Vancouver, BC V6E 2K3
Attention: Sunny Trinh
Email: [email protected]
with a copy to (which shall not constitute notice):
Morrison & Foerster LLP
12531 High Bluff Drive
San Diego, CA 92130
Attention: Shai Kalansky
Email: [email protected]
and with a copy (which will not constitute notice) to:
McMillan LLP
Royal Centre, Suite 1500
1055 West Georgia Street, PO Box 11117
Vancouver, British Columbia
Canada V6E 4N7
Attention: Mark Neighbor
Email: [email protected]
if to Southern:
Southern Energy Renewables Inc.
201 Rue Beauregard STE 202,
Lafayette, LA 70508 US
Attn: Majique Ladnier
Email: [email protected]
with a copy to (which shall not constitute notice):
Whitley LLP
24285 Katy Freeway
Suite 300, Katy, TX 77494
Attention: Samuel Whitley
Email: [email protected]
if to the Company:
XCF Global, Inc.
2500 CityWest Blvd. Suite 150-138
Houston, TX 77042
Attn: Chris Cooper
Email: [email protected]
with a copy to (which will not constitute notice):
Paul Hastings LLP
200 Park Avenue
New York, New York 10166
Attention: Gil Savir
Email: [email protected]
and with a copy to (which will not constitute notice):
Stikeman Elliott LLP
5300 Commerce Court West
199 Bay Street
Toronto, Ontario, M5L 1B9, Canada
Attention: John Ciardullo; J.R. Laffin
Email: [email protected];
If to the Company Special Committee:
XCF Global, Inc.
2500 CityWest Blvd. Suite 150-138
Houston, TX 77042
Attn: Chris Cooper;
Email: [email protected]
and with a copy (which will not constitute notice) to:
Shumaker, Loop & Kendrick, LLP
101 East Kennedy Boulevard, Suite 2800
Tampa FL 33602
Attention: Julio C. Esquivel
and if to the Securityholder, to the address set forth on Schedule 1,
or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner
set forth above.
Section 5.05. Interpretation. When reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated.
Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein,” “hereby” and “hereunder” and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “or” shall not be exclusive. Whenever used in this Agreement, any noun or pronoun shall be
deemed to include the plural as well as the singular and to cover all genders. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or
causing any instrument to be drafted.
Section 5.06. Counterparts. This Agreement may be executed in counterparts (which may be delivered by facsimile or other electronic transmission), each of which shall be
deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
Section 5.07. Entire Agreement. This Agreement and, to the extent referenced herein, the Transaction Documents, together with the several agreements and other documents and
instruments referred to herein or therein or attached hereto or thereto, constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and
understandings, both oral and written, among the parties with respect to the subject matter hereof and thereof. Except for the representations and warranties expressly contained in Article 3, the Securityholder makes no express or implied representation or warranty with respect to the Securityholder or the Covered Shares, or otherwise.
Section 5.08. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be governed
by, construed and enforced in accordance with the Laws of Delaware and the federal Laws applicable therein, without regard to any choice of law or conflict of laws principles thereof that would cause the application of the Law of
any jurisdiction other than those of the State of Delaware. Each Party irrevocably attorns and submits to the non-exclusive jurisdiction of the Delaware Court of Chancery in and for New Castle and waives objection to the venue of
any proceeding in such court or that such court provides an inconvenient forum.
(b) EACH PARTY HERETO HEREBY WAIVES TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (II)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 5.09. Amendment; Waiver. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of
an amendment, by each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective, but such waiver shall not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure.
Section 5.10. Remedies. The parties hereto agree that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any
provision of this Agreement were not performed in accordance with their specific terms hereof or were otherwise breached and that it is accordingly agreed that, prior to termination of this Agreement, the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to specific performance of the terms hereof, in addition to any other remedy at law or equity.
Section 5.11. Severability. If any term or other provision of this Agreement is held to be invalid, illegal or incapable of being enforced by any rule of law or public policy
in any jurisdiction, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect and shall not be affected thereby, so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced in any jurisdiction, this Agreement will be
reformed, construed and enforced in such jurisdiction so as to effect the original intent of the parties as closely as possible to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.
Section 5.12. Successors and Assigns; Third Party Beneficiaries. Other than by the Securityholder to a transferee pursuant to a Permitted Transfer or any assignment,
delegation or other transfer effected under the Combination Agreement, no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto. No
provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective heirs, executors, personal legal
representatives, successors and permitted assigns. For the avoidance of doubt and without limiting Southern’s and the Company’s rights hereunder, Southern and the Company shall be beneficiaries of, and entitled to enforce, the
rights of DevvStream under Section 2.03 (Proxy) to the extent not being enforced by DevvStream.
Section 5.13. Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.
Section 5.14. Non-Recourse. Notwithstanding anything to the contrary herein or in any other documents delivered pursuant hereto, (a) this Agreement may be enforced only
against, and any claim based upon, arising out of or related to a breach of this Agreement by the Securityholder may be made only against, the Securityholder (or in each case its Permitted Transferees), and (b) none of the
Securityholder or its Affiliates shall have any liability for any liabilities of the parties hereto for any such claims (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any oral
representations made or alleged to be made in connection herewith (other than any such Permitted Transferee).
Section 5.15. Acknowledgment of Counsel. Each party to this Agreement hereby (a) acknowledges that (i) Morrison & Foerster LLP and McMillan LLP represent and serve as
counsel for only DevvStream (and no other party to this Agreement) with respect to this Agreement, the Combination Agreement and the Transactions, (ii) Paul Hastings LLP and Stikeman Elliott LLP represent and serve as counsel for
only the Company (and no other party to this Agreement) with respect to this Agreement, the Combination Agreement and the Transactions, (iii) Shumaker, Loop & Kendrick LLP represent and serve as counsel for only the Company
Special Committee (and no other party to this Agreement) with respect to this Agreement, the Combination Agreement and the Transactions, (iv) Whitley LLP represents and serves as counsel for only Southern (and no other party to
this Agreement) with respect to this Agreement, the Combination Agreement and the Transactions and (v) such party has either sought the advice of their own counsel or has had the opportunity to seek their own counsel and has
chosen not to do so, (b) gives their informed consent to Morrison & Foerster LLP’s and McMillan LLP’s representation of DevvStream in connection with this Agreement, the Combination Agreement and the Transactions, (c) gives
their informed consent to Paul Hastings LLP’s and Stikeman Elliott LLP’s representation of the Company in connection with this Agreement, the Combination Agreement and the Transactions, (d) gives their informed consent to
Shumaker, Loop & Kendrick LLP’s representation of the Company Special Committee in connection with this Agreement, the Combination Agreement and the Transactions, and (e) gives their informed consent to Whitley LLP’s
representation of Southern in connection with this Agreement, the Combination Agreement and the Transactions.
Section 5.16. Termination of Southern Support & Lock-Up Agreement. Effective as of the date hereof, that certain Southern Support & Lock-Up Agreement, dated as of
December 3, 2025, by and among Southern, DevvStream and the other parties thereto, is hereby terminated in its entirety and shall be of no further force of effect, without any liability to any party thereto.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where applicable, by their respective officers or
other authorized Person thereunto duly authorized) as of the date first written above.
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XCF GLOBAL, INC.
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By:
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Name:
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Title
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DEVVSTREAM CORP.
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By:
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Name:
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Title:
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SOUTHERN ENERGY RENEWABLES INC.
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By:
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Name:
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Title:
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[Signature Page to Southern Support & Lock-up Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where applicable, by
their respective officers or other authorized Person thereunto duly authorized) as of the date first written above.
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SECURITYHOLDER:
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EEME ENERGY SPV I LLC
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By:
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Name:
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Title:
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[Signature Page to Southern Support & Lock-up Agreement]
Schedule 1
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Securityholder
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Existing Shares
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Address for Notice
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EEME ENERGY SPV I LLC
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[_____]
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30 N Gould St. Ste R Sheridan Wyoming 82801
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Execution Version
DEVVSTREAM SUPPORT & LOCK-UP AGREEMENT
THIS DEVVSTREAM SUPPORT & LOCK-UP AGREEMENT (this “Agreement”), dated as of April [•], 2026, is made by and among, XCF Global, Inc.,
a Delaware corporation (the “Company”), DevvStream Corp., an Alberta corporation (“DevvStream”), Southern Energy Renewables Inc., a Louisiana
corporation (“Southern”), and the individual or entity whose name appears in the signature block to this Agreement (the “DevvStream Core Securityholder”).
W I T N E S S E T H:
WHEREAS, concurrently with the execution of this Agreement, the Company, DevvStream, Southern, Merger Sub 1., a Delaware corporation and a wholly-owned subsidiary of the Company
(“Merger Sub 1”), and Merger Sub 2, a Delaware corporation and a wholly-owned subsidiary of the Company(“Merger Sub 2”), are entering into a
Business Combination Agreement (the “Combination Agreement”) providing for, among other things, (i) the corporate migration of DevvStream from the Province of Alberta to the State of
Delaware (ii) the merging of Merger Sub 1 with and into Southern with Southern surviving the merger as the surviving corporation (as further described in the Combination Agreement, the “Southern
Merger”) and (iii) the merging of Merger Sub 2 with and into DevvStream with DevvStream surviving the merger as the surviving corporation (as further described in the Combination Agreement, the “DevvStream Merger”, and together with the Southern Merger, the “Mergers”).
WHEREAS, as a condition and inducement to the Company and Southern entering into the Combination Agreement, the Company and Southern have required that the DevvStream Core
Securityholder enter into this Agreement and abide by the covenants and obligations with respect to the DevvStream Core Securityholder’s Covered Shares;
WHEREAS, the Boards of the Company, Merger Sub 1, Merger Sub 2, DevvStream, and Southern, the Company Special Committee and the DevvStream Special Committee, have authorized the
entering into of the Combination Agreement and the Ancillary Documents and approved the execution and delivery of this Agreement and each other Support & Lock-Up Agreement in connection therewith, understanding that the
execution and delivery of this Agreement by the DevvStream Core Securityholder is a material inducement and condition to the Company’s, DevvStream’s and Southern’s willingness to enter into the Combination Agreement; and
WHEREAS, concurrently with the execution and delivery of this Agreement, Southern and DevvStream have terminated that certain Company
Support & Lock-Up Agreement, dated as of December 3, 2025, by and among Southern, DevvStream and the other parties thereto, without any liability to any party thereto.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE 1
GENERAL
Section 1.01. Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto in the
Combination Agreement. The following capitalized terms, as used in this Agreement, shall have the following meanings:
“Beneficial Ownership” has the meaning ascribed to such term in Rule 13d-3 under the Exchange Act. The terms “Beneficially Own,” “Beneficially Owned” and “Beneficial Owner” shall each have a correlative meaning.
“Covered Shares” means, with respect to the DevvStream Core Securityholder, (i) the Existing Shares, (ii) any Company Securities that the
DevvStream Core Securityholder acquires Beneficial Ownership of on or after the date hereof, including the DevvStream Consideration Shares received by the DevvStream Core Securityholder in the Transactions, (iii) any options,
restricted stock units, warrants or other securities or rights which are convertible into or exercisable or exchangeable for DevvStream Shares or DevvStream Convertible Securities (together, “DevvStream
Securities”) that the DevvStream Core Securityholder acquires Beneficial Ownership of on or after the date hereof, and (iv) all securities issued in respect of the foregoing, including by dividend, distribution,
reclassification, recapitalization, reorganization, split, reverse split, subdivision, combination, substitution, exchange, conversion or merger.
“Encumbrance” means any security interest, pledge, mortgage, lien (statutory or other), charge, option to purchase, lease or other right
to acquire any interest or any claim, restriction, covenant, title defect, hypothecation, assignment, deposit arrangement or other encumbrance of any kind or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement). The term “Encumber” shall have a correlative meaning.
“Existing Shares” means (i) all DevvStream Shares and DevvStream Convertible Securities Beneficially Owned by the DevvStream Core
Securityholder on the date hereof, and (ii) all options, restricted stock units, warrants or other securities or rights that are convertible into or exchangeable or exercisable for any Company Securities that are Beneficially
Owned by the DevvStream Core Securityholder on the date hereof. The DevvStream Core Securityholder’s Existing Shares are set forth on Schedule 1 of this Agreement.
“Expiration Time” means the earliest to occur of (a) the first date on which the Lock-up Period has expired and (b) such date and time as
the Combination Agreement shall be terminated in accordance with Section 11.1 thereof.
“Permitted Transfer” means a Transfer of Covered Shares (a) in the case of an entity, to such entity’s officers or directors or
controlling shareholders or to any affiliate or family member of such entity or its officers or directors or controlling shareholders; (b) in the case of an individual, by gift to a member of such individual’s immediate family
or to a trust, the beneficiary of which is a member of such individual’s immediate family, an affiliate of such individual or to a charitable organization; (c) in the case of an individual, by virtue of laws of descent and
distribution upon death of such individual; (d) in the case of an individual, pursuant to a qualified domestic relations order; (e) of Unrestricted Shares (as defined below) following the Closing or (f) in the case of the
DevvStream Core Securityholder, with the prior written consent of the Company and Southern, such consent not to be unreasonably withheld; provided, however, that all such permitted transferees received Covered
Shares, other than in a Transfer covered by clause (e) must enter into a written agreement with the parties hereto agreeing to be bound by the terms of this Agreement as if a party hereto and if such written agreement is not
executed and delivered to the Company, DevvStream and Southern, such Transfer shall not be a Permitted Transfer hereunder.
“Transfer” means, directly or indirectly, to sell, transfer, gift, assign, pledge, Encumber, hypothecate, hedge or similarly dispose of
(including by merger (including by conversion into securities or other consideration), by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise), either voluntarily or
involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the voting of or sale, transfer, gift, assignment, pledge, Encumbrance, hypothecation, hedge or similar disposition of
(including by merger, by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise).
“Transaction Documents” means the Combination Agreement and the Ancillary Documents.
ARTICLE 2
VOTING
Section 2.01. Agreement to Vote.
(a) The DevvStream Core Securityholder hereby irrevocably and unconditionally agrees that during the period between the execution of this Agreement and the earlier of (i)
the termination of the Combination Agreement in accordance with its terms and (ii) the Closing, at any meeting of the DevvStream Securityholders, however called, including any adjournment or postponement thereof, and in
connection with any written consent of shareholders of DevvStream, the DevvStream Core Securityholder shall, in each case to the fullest extent that the Covered Shares of the DevvStream Securityholder are entitled to vote
thereon or consent thereto:
(i) appear at each such meeting or otherwise cause such Covered Shares to be counted as present there at for purposes of calculating a quorum, or respond to the
request by DevvStream for written consent, as applicable; and
(ii) vote (or cause to be voted), in person or by proxy, or by written consent, as applicable, all of such Covered Shares (A) in favor of (1) the adoption and approval
of the Domestication and the DevvStream Merger, and approval of any other matters necessary or reasonably requested by the Company, Southern and DevvStream in connection therewith, and (2) any proposal to adjourn or postpone any
meeting of the shareholders of DevvStream at which any of the foregoing matters are submitted for consideration and vote of the shareholders of DevvStream to a later date if there are not a quorum or sufficient votes for
approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters; (B) if a shareholder vote is required or requested with respect thereto, against
any action or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of DevvStream contained in the Transaction Documents, or of the DevvStream Core
Securityholder contained in this Agreement; and (C) if a shareholder vote is required or requested with respect thereto, against (1) any Acquisition Proposal or other proposal that
competes with the Transactions or involves any Alternative Transaction or other transaction or business combination with a Person other than Southern, the Company or their Affiliates that is required or permitted to be submitted
to a vote of the DevvStream Securityholders, (2) any other action, agreement or transaction involving the DevvStream or any of its Affiliates that is intended, or would reasonably be
expected to, impede, interfere with, delay, postpone, adversely affect or prevent the consummation of the Transactions, or this Agreement or the performance by DevvStream of its obligations under the any Transaction Document or
by the DevvStream Core Securityholder of its obligations under this Agreement and (3) any proposal, action or agreement that would change in any manner the dividend policy or capitalization of, including the voting rights of,
any class of capital stock or other securities of DevvStream (other than, in the case of this clause (3), pursuant to the Combination Agreement or the Ancillary Documents and the Transactions).
(b) The DevvStream Core Securityholder hereby (i) waives, and agrees not to exercise or assert, any dissent, appraisal or similar rights in connection with the
Transactions and (ii) agrees (A) not to commence or participate in, and (B) to take all actions necessary to opt out of, any class action with respect to, any claim, derivative or otherwise, against DevvStream or any of its
Affiliates relating to the negotiation, execution or delivery of this Agreement, the Transaction Documents or the consummation of the Transactions including any claim (1) challenging the validity of, or seeking to enjoin the
operation of, any provision of this Agreement or (2) alleging a breach of any fiduciary duty of the DevvStream Board in connection with this Agreement, the Transaction Documents or the Transactions.
(c) The obligations of the DevvStream Core Securityholder specified in this Section 2.01 shall apply whether or not (i) the Transactions, the Combination
Agreement or any action described above is recommended by the DevvStream Board (or any committee thereof) or (ii) the DevvStream Board has previously recommended the Transactions, the Combination Agreement, or any action
described above and subsequently withdrawn or otherwise changed such recommendation.
Section 2.02. No Inconsistent Agreements. The DevvStream Core Securityholder hereby covenants and agrees that, except for this
Agreement (a) it has not entered into, and shall not enter into at any time prior to the Effective Time, any voting agreement or voting trust with respect to the Covered Shares of the DevvStream Core Securityholder, (b) it has
not granted, and shall not grant at any time prior to the Effective Time, a proxy (except pursuant to Section 2.03 or pursuant to any proxy in form and substance reasonably satisfactory to Southern, DevvStream and
Company delivered to DevvStream, directing that the Covered Shares of the DevvStream Core Securityholder be voted in accordance with Section 2.01), consent or power of attorney with respect to the Covered Shares of the
DevvStream Core Securityholder and (c) has not taken and shall not knowingly take any action that would make any representation or warranty of the Securityholder contained herein untrue or incorrect or have the effect of
preventing or disabling the DevvStream Core Securityholder from performing any of its covenants or obligations under this Agreement; provided, however, that this Section 2.02 shall not preclude the
DevvStream Core Securityholder from Transferring Covered Shares pursuant to a Permitted Transfer or taking any action permitted under the last sentence of Section 4.01(a) (subject in each case to the express terms of
this Agreement). The DevvStream Core Securityholder hereby represents that all proxies, powers of attorney, instructions or other requests given by the DevvStream Core Securityholder prior to the execution of this Agreement in
respect of the voting of the Covered Shares of the DevvStream Core Securityholder, if any, are not irrevocable and the DevvStream Core Securityholder hereby revokes (and shall cause to be revoked) any and all previous proxies,
powers of attorney, instructions or other requests with respect to the DevvStream Core Securityholder’s Covered Shares.
Section 2.03. Proxy. The DevvStream Core Securityholder hereby irrevocably appoints as its proxy and attorney-in-fact, DevvStream
and any Person designated in writing by DevvStream, each of them individually, with full power of substitution and resubstitution, until the termination of this Agreement, to vote the Covered Shares Beneficially Owned by the
DevvStream Core Securityholder in accordance with Section 2.01 in connection with any vote of the DevvStream Securityholders in respect of any of the matters described in Section 2.01; provided, however,
that the DevvStream Core Securityholder’s grant of the proxy contemplated by this Section 2.03 shall be effective if, and only if, the DevvStream Core Securityholder fails to vote such Covered Shares (or grant a consent
or approval, as applicable) in accordance with Section 2.01. This proxy, if it becomes effective, is coupled with an interest, is given as an additional inducement of the Company, Southern and DevvStream to enter into
the Combination Agreement and shall be irrevocable prior to the Effective Time, at which time any such proxy shall terminate and be released. Neither the Company, Southern, DevvStream nor any Person may exercise this proxy on
any matter, or in circumstance, except as provided above.
Section 2.04. Beneficial Ownership. As of immediately prior to the Closing, the DevvStream Core Securityholder shall hold the
number of DevvStream Shares set forth on Schedule 1, free and clear of any and all liens, encumbrances, claims, security interests, pledges, charges or other restrictions of any kind.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The DevvStream Core Securityholder hereby represents and warrants to Southern, DevvStream and the Company as to, and only as to, the DevvStream Core Securityholder as follows:
Section 3.01. Authorization; Validity of Agreement. If the DevvStream Core Securityholder is not an individual, the DevvStream
Core Securityholder is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. The DevvStream Core Securityholder has the requisite capacity and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly authorized (to the extent authorization is required), executed and delivered by
the DevvStream Core Securityholder and, assuming this Agreement constitutes a valid and binding obligation of Southern, DevvStream and the Company, constitutes a legal, valid and binding obligation of the DevvStream Core
Securityholder, enforceable against the DevvStream Core Securityholder in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting
creditors’ rights generally and general principles of equity). [If the DevvStream Core Securityholder is married and the DevvStream Core Securityholder’s Covered Shares constitute community
property under applicable Law, a spousal consent in substantially the form attached hereto as Exhibit A has been duly executed and delivered by, and constitutes the valid and binding agreement of, the Core Company
Securityholder’s spouse (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).]
Section 3.02. Ownership. Except as otherwise set forth on Schedule 1, unless Transferred pursuant to a Permitted
Transfer, (a) the Existing Shares, if any, are all of the Covered Shares Beneficially Owned by the DevvStream Core Securityholder on the date hereof, (b) from the date hereof through and at the Effective Time, the Existing
Shares will be Beneficially Owned by the DevvStream Core Securityholder, and (c) the DevvStream Core Securityholder has good and valid title to the Existing Shares, if any, free and clear of any Encumbrances other than pursuant
to this Agreement, or under applicable federal, provincial or state securities Laws. The DevvStream Core Securityholder has and will have at all times through the Effective Time sole voting power (including the right to control
such vote as contemplated herein), sole power of disposition, sole power to issue instructions with respect to the matters set forth in Article 2, and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the DevvStream Core Securityholder’s Existing Shares, except with respect to any Existing Shares that are Transferred pursuant to a Permitted Transfer.
Section 3.03. No Violation. The execution and delivery of this Agreement by the DevvStream Core Securityholder does not, and the
performance by the DevvStream Core Securityholder of its obligations under this Agreement will not, (a) conflict with or violate any applicable Law or, if applicable, any certificate, notice of articles or articles of
incorporation, as applicable, or bylaws or other equivalent organizational documents of the DevvStream Core Securityholder, or (b) violate, conflict with, result in a breach of any provision of or the loss of any benefit under,
constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required
by, or result in the creation of any Encumbrance upon any of the properties or assets (including any Covered Shares) of the DevvStream Core Securityholder under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which the DevvStream Core Securityholder is a party or by which the DevvStream Core Securityholder or any of its, his or her
properties or assets may be bound, except in each case as would not prevent or delay consummation of the Mergers and the other Transactions or impair the ability of the DevvStream Core Securityholder to perform its, his or her
obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
Section 3.04. Consents and Approvals. The execution and delivery of this Agreement by the DevvStream Core Securityholder does not,
and the performance by the DevvStream Core Securityholder of its, his or her obligations under this Agreement and the consummation by the DevvStream Core Securityholder of the transactions contemplated hereby will not, require
the DevvStream Core Securityholder to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Person.
Section 3.05. Absence of Litigation. As of the date hereof, there is no litigation, action, suit or proceeding pending or, to the
knowledge of the DevvStream Core Securityholder, threatened against or affecting the DevvStream Core Securityholder or any of its Affiliates before or by any Governmental Authority that would reasonably be expected to impair the
ability of the DevvStream Core Securityholder to perform its, his or her obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
Section 3.06. Reliance by Company, DevvStream and Southern. The DevvStream Core Securityholder understands and acknowledges that
the Company, DevvStream and Southern are entering into the Combination Agreement in reliance upon the execution and delivery of this Agreement by the DevvStream Core Securityholder and the representations and warranties of the
DevvStream Core Securityholder contained herein. The DevvStream Core Securityholder understands and acknowledges that the Combination Agreement governs the terms of the Mergers, and the other transactions contemplated thereby.
Section 3.07. Adequate Information. The DevvStream Core Securityholder is a sophisticated holder with respect to the Covered
Shares and has adequate information concerning the transactions contemplated by the Combination Agreement and concerning the business and financial condition of Southern, DevvStream and the Company to make an informed decision
regarding the matters referred to herein and has independently, based on such information as the DevvStream Core Securityholder has deemed appropriate, made the DevvStream Core Securityholder’s own analysis and decision to enter
into this Agreement.
ARTICLE 4
OTHER COVENANTS
Section 4.01. Prohibition on Transfers; Other Actions.
(a) The DevvStream Core Securityholder agrees that, from the date hereof until the Effective Time (and without limitation of the provisions set forth in Section
4.01(b)), the DevvStream Core Securityholder shall not (i) Transfer or permit the Transfer of the DevvStream Core Securityholder’s Covered Shares, Beneficial Ownership thereof or any other interest therein unless (A) such
Transfer is a Permitted Transfer effected in accordance with the terms of this Agreement and (B) such Permitted Transfer would not violate, conflict with or otherwise have the effects described in clause (ii) or (iii) below;
(ii) enter into any agreement, arrangement or understanding with any Person, or take any other action, that violates or would reasonably be expected to violate or conflict, or result in or give rise to a violation of, (A) the
DevvStream Core Securityholder’s representations, warranties, covenants and obligations under this Agreement or (B) DevvStream’s representations, warranties, covenants or obligations under this Agreement or Ancillary Documents;
or (iii) take any action that is intended, or would reasonably be expected to, impede, interfere with, delay, postpone, adversely affect or restrict the DevvStream Core Securityholder’s legal power, authority and right to comply
with and perform its covenants and obligations under this Agreement or the Company’s, Merger Sub 1’s, Merger Sub 2’s or Southern’s covenants and obligations under any Transaction Document or the consummation of the Transaction.
Any Transfer in violation of this provision shall be void ab initio. Until the earlier of the termination of the Combination Agreement in accordance with its terms and the Effective Time
(and without limitation of the provisions set forth in Section 4.01(b)), the DevvStream Core Securityholder (x) shall not request Devvstream register the Transfer (book-entry or otherwise) of any of the DevvStream Core
Securityholder’s Covered Shares or any certificate in respect thereof and (y) hereby consents to the entry of stop transfer instructions by DevvStream with respect to any Transfer of the DevvStream Core Securityholder’s Covered
Shares, unless, in each case, such Transfer is a Permitted Transfer effected in accordance with the terms of this Agreement. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall require any
action, or restrict the DevvStream Core Securityholder, with respect to any Covered Shares subject to any pledge or security interest in effect as of the date hereof as set forth on Schedule 1 to the extent such action
or restriction is inconsistent with the terms of such pledge or security interest; provided that, unless and until there is a bona fide foreclosure with respect to such pledge or
security interest, the DevvStream Core Securityholder agrees that there are no terms of any such pledge or security interest that will prevent or impair the DevvStream Core Securityholder from complying with any obligation,
agreement or covenant set forth herein.
(b) The DevvStream Core Securityholder shall not Transfer, or permit any Transfer, of the DevvStream Core Securityholder’s Covered Shares (unless such Transfer is a
Permitted Transfer effected in accordance with the terms of this Agreement) until the earlier of (i) the date that is six (6) months after the Closing, and (ii) the date on which the Company (or its successor) completes a
liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of the Company’s (or such successor’s) shareholders having the right to exchange their securities for cash, securities
or other property (the “Lock-up Period”). Notwithstanding the foregoing, the restrictions set forth in this Section 4.01(b), shall not apply to fifty percent (50%) of the
DevvStream Consideration Shares received by the DevvStream Core Securityholder in the Transaction (the “Unrestricted Shares”). Any Permitted Transfer of Unrestricted Shares shall be
affected in compliance with applicable law, including without limitation, effecting such sales pursuant to an effective resale registration statement or Rule 144 (including the manner-of-sale, volume, notice and public
information requirements applicable to affiliates), if available.
Section 4.02. Notice of Acquisitions. The DevvStream Core Securityholder agrees to notify Southern, DevvStream and the Company as
promptly as reasonably practicable of the number of any additional shares of DevvStream Board or other securities convertible into or exercisable or exchangeable for shares of DevvStream Board of which the DevvStream Core
Securityholder acquires Beneficial Ownership on or after the date hereof and prior to the Effective Time.
ARTICLE 5
MISCELLANEOUS
Section 5.01. Termination. This Agreement shall remain in effect until the Expiration Time, at which time this Agreement shall
terminate in its entirety and be of no further force or effect; provided, however, that any proxy granted hereunder shall be automatically and immediately terminated and released at the Effective Time. Neither
the provisions of this Section 5.01 nor the termination of this Agreement shall (a) relieve any party hereto from any liability of such party to any other party incurred prior to such termination or expiration, (b)
relieve any party hereto from any liability to any other party arising out of or in connection with any breach of this Agreement prior to such termination or expiration or fraud, or (c) terminate the obligations under Section
2.01(b).
Section 5.02. No Agreement as Director or Officer. Notwithstanding any provision in this Agreement to the contrary, nothing in
this Agreement shall (a) limit, restrict or otherwise affect the DevvStream Core Securityholder or any Affiliate or Representative of the DevvStream Core Securityholder in his or her capacity as a director or officer of the
Company or DevvStream from acting (or not acting) in such capacity or voting in the capacity as a director in such person’s sole discretion on any matter, including in respect of the Combination Agreement, and no such actions or
votes shall be deemed a breach of this Agreement, or (b) be construed to prohibit, limit or restrict the DevvStream Core Securityholder or any Affiliates or Representatives of the DevvStream Core Securityholder from exercising
fiduciary duties as a director or officer of the Company or DevvStream solely in their capacity as such, and not acting in their capacity as a DevvStream Core Securityholder. Without limiting the foregoing, it is the intention
of the parties that this Agreement shall apply to the DevvStream Core Securityholder solely in the DevvStream Core Securityholder’s capacity as a DevvStream Securityholder.
Section 5.03. No Ownership Interest. The DevvStream Core Securityholder has agreed to enter into this Agreement and act in the
manner specified in this Agreement for consideration. Except as expressly set forth in this Agreement, all rights and all ownership and economic benefits of and relating to the DevvStream Core Securityholder’s Covered Shares
shall remain vested in and belong to the DevvStream Core Securityholder, and except as expressly set forth in this Agreement, nothing herein shall, or shall be construed to, grant the Company, Southern or DevvStream any power,
sole or shared, to direct or control the voting or disposition of any of such Covered Shares.
Section 5.04. Notices. All notices, requests, claims, demands and other communications hereunder shall be given (and shall be
deemed to have been duly received if given) by hand delivery in writing, by facsimile transmission with confirmation of receipt, by email transmission with confirmation of receipt or by recognized overnight or international
courier service, as follows:
if to DevvStream:
DevvStream Holdings Inc.
2133-1177 West Hastings Street
Vancouver, BC V6E 2K3
Attention: Sunny Trinh
Email: [email protected]
with a copy to (which shall not constitute notice):
Morrison & Foerster LLP
12531 High Bluff Drive
San Diego, CA 92130
Attention: Shai Kalansky
Email: [email protected]
and with a copy (which will not constitute notice) to:
McMillan LLP
Royal Centre, Suite 1500
1055 West Georgia Street, PO Box 11117
Vancouver, British Columbia
Canada V6E 4N7
Attention: Mark Neighbor
Email: [email protected]
If to Southern:
Southern Energy Renewables Inc.
201 Rue Beauregard STE 202,
Lafayette, LA 70508 US
Attn: Majique Ladnier
Email: [email protected]
with a copy to (which shall not constitute notice):
Whitley LLP
24285 Katy Freeway
Suite 300, Katy, TX 77494
Attention: Samuel Whitley
Email: [email protected]
If to the Company:
XCF Global, Inc.
2500 CityWest Blvd. Suite 150-138
Houston, TX 77042
Attn: Chris Cooper
Email: [email protected]
with a copy to (which shall not constitute notice):
Paul Hastings LLP
200 Park Avenue
New York, New York 10166
Attention: Gil Savir
Email: [email protected]
and with a copy to (which will not constitute notice):
Stikeman Elliott LLP
5300 Commerce Court West
199 Bay Street
Toronto, Ontario, M5L 1B9, Canada
Attention: John Ciardullo; J.R. Laffin
Email: [email protected];
If to the Company Special Committee:
XCF Global, Inc.
2500 CityWest Blvd. Suite 150-138
Houston, TX 77042
Attn: Chris Cooper;
Email: [email protected]
and with a copy (which will not constitute notice) to:
Shumaker, Loop & Kendrick, LLP
101 East Kennedy Boulevard, Suite 2800
Tampa FL 33602
Attention: Julio C. Esquivel
and if to the DevvStream Core Securityholder, to the address set forth on Schedule 1,
or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
Section 5.05. Interpretation. When reference is made in this Agreement to a Section, such reference shall be to a Section of this
Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein,”
“hereby” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “or” shall not be exclusive. Whenever used
in this Agreement, any noun or pronoun shall be deemed to include the plural as well as the singular and to cover all genders. This Agreement shall be construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to be drafted.
Section 5.06. Counterparts. This Agreement may be executed in counterparts (which may be delivered by facsimile or other
electronic transmission), each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
Section 5.07. Entire Agreement. This Agreement and, to the extent referenced herein, the Transaction Documents, together with
the several agreements and other documents and instruments referred to herein or therein or attached hereto or thereto, constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings, both oral and written, among the parties with respect to the subject matter hereof and thereof. Except for the representations and warranties expressly contained in Article
3, the DevvStream Core Securityholder makes no express or implied representation or warranty with respect to the DevvStream Core Securityholder or the Covered Shares, or otherwise.
Section 5.08. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be governed by, construed and enforced in accordance with the Laws of Delaware and the federal Laws applicable therein, without regard to any
choice of law or conflict of laws principles thereof that would cause the application of the Law of any jurisdiction other than those of the State of Delaware. Each Party irrevocably attorns and submits to the non-exclusive
jurisdiction of the Delaware Court of Chancery in and for New Castle and waives objection to the venue of any proceeding in such court or that such court provides an inconvenient forum.
(b) EACH PARTY HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 5.09. Amendment; Waiver. Any provision of this Agreement may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective, but such waiver shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure.
Section 5.10. Remedies. The parties hereto agree that irreparable damage would occur and that the parties would not have any
adequate remedy at law in the event that any provision of this Agreement were not performed in accordance with their specific terms hereof or were otherwise breached and that it is accordingly agreed that, prior to termination
of this Agreement, the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specific performance of the terms hereof, in addition to any other remedy at law or equity.
Section 5.11. Severability. If any term or other provision of this Agreement is held to be invalid, illegal or incapable of
being enforced by any rule of law or public policy in any jurisdiction, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect and shall not be affected thereby, so long as the
economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced
in any jurisdiction, this Agreement will be reformed, construed and enforced in such jurisdiction so as to effect the original intent of the parties as closely as possible to the end that the transactions contemplated hereby are
fulfilled to the fullest extent possible.
Section 5.12. Successors and Assigns; Third Party Beneficiaries. Other than by the DevvStream Core Securityholder to a
transferee pursuant to a Permitted Transfer or any assignment, delegation or other transfer effected under the Combination Agreement, no party may assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of each other party hereto. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties
hereto and their respective heirs, executors, personal legal representatives, successors and permitted assigns. For the avoidance of doubt and without limiting Southern’s and the Company’s rights hereunder, Southern and the
Company shall be a beneficiaries of, and entitled to enforce, the rights of DevvStream under Section 2.03 (Proxy) to the extent not being enforced by DevvStream.
Section 5.13. Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring
such cost or expense.
Section 5.14. Non-Recourse. Notwithstanding anything to the contrary herein or in any other documents delivered pursuant hereto,
(a) this Agreement may be enforced only against, and any claim based upon, arising out of or related to a breach of this Agreement by the DevvStream Core Securityholder may be made only against, the DevvStream Core
Securityholder (or in each case its Permitted Transferees), and (b) none of the DevvStream Core Securityholder or its Affiliates shall have any liability for any liabilities of the parties hereto for any such claims (whether in
tort, contract or otherwise) for breach of this Agreement or in respect of any oral representations made or alleged to be made in connection herewith (other than any such Permitted Transferee).
Section 5.15. Acknowledgment of Counsel. Each party to this Agreement hereby (a) acknowledges that (i) Morrison & Foerster LLP
and McMillan LLP represent and serve as counsel for only DevvStream (and no other party to this Agreement) with respect to this Agreement, the Combination Agreement and the Transactions, (ii) Paul Hastings LLP and Stikeman
Elliott LLP represent and serve as counsel for only the Company (and no other party to this Agreement) with respect to this Agreement, the Combination Agreement and the Transactions, (iii) Shumaker, Loop & Kendrick LLP
represent and serve as counsel for only the Company Special Committee (and no other party to this Agreement) with respect to this Agreement, the Combination Agreement and the Transactions, (iv) Whitley LLP represents and serves
as counsel for only Southern (and no other party to this Agreement) with respect to this Agreement, the Combination Agreement and the Transactions and (v) such party has either sought the advice of their own counsel or has had
the opportunity to seek their own counsel and has chosen not to do so, (b) gives their informed consent to Morrison & Foerster LLP’s and McMillan LLP’s representation of DevvStream in connection with this Agreement, the
Combination Agreement and the Transactions, (c) gives their informed consent to Paul Hastings LLP’s and Stikeman Elliott LLP’s representation of the Company in connection with this Agreement, the Combination Agreement and the
Transactions, (d) gives their informed consent to Shumaker, Loop & Kendrick LLP’s representation of the Company Special Committee in connection with this Agreement, the Combination Agreement and the Transactions, and (e)
gives their informed consent to Whitley LLP’s representation of Southern in connection with this Agreement, the Combination Agreement and the Transactions.
Section 5.16. Termination of Company Support & Lock-Up Agreement. Effective as of the date hereof, that certain Company
Support & Lock-Up Agreement, dated as of December 3, 2025, by and among Southern, DevvStream and the other parties thereto, is hereby terminated in its entirety and shall be of no further force of effect, without any
liability to any party thereto.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where applicable, by their respective officers or other authorized Person thereunto duly
authorized) as of the date first written above.
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XCF GLOBAL, INC.
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By:
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Name:
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Title
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DEVVSTREAM CORP.
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By:
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Name:
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Title:
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SOUTHERN ENERGY RENEWABLES INC.
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By:
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Name:
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Title:
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[Signature Page to DevvStream Support & Lock-up Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where applicable, by their respective officers or other authorized Person thereunto duly
authorized) as of the date first written above.
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DEVVSTREAM CORE SECURITYHOLDER:
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[_____]
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By:
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Name:
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Title:
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[Signature Page to DevvStream Support & Lock-up Agreement]
Schedule 1
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DevvStream Core
Securityholder
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Existing Shares
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Address for Notice
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[____]
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[_____]
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[______]
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Exhibit A
Consent of Spouse
I, _____________________, spouse of [Name of DevvStream Core Securityholder], have read and approved that certain Support and Lock-up Agreement (the “Agreement”), dated
as of [ ], 2026, by and among DevvStream Corp. Inc., an Alberta corporation, Southern Energy Renewables Inc., a Louisiana corporation, XCF Global, Inc., a Delaware
corporation and the DevvStream Core Securityholder. In consideration of the right of my spouse to participate in the transactions described in the Agreement, I hereby appoint my spouse as my attorney-in-fact in respect to the
exercise of any rights under the Agreement insofar as I may have any rights under the community property laws of the [jurisdiction] or similar laws relating to marital property in effect in the [state / country] of our residence
as of the date of the signing of the foregoing Agreement.
| Dated: | , 2026 | By: | |||
| Name: |
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XCF Global, Southern Energy Renewables and DevvStream Sign Definitive Business Combination Agreement
with Respect to Previously Announced Proposed Three-Party Merger to Create Next-Generation Energy Platform
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•
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Creation of a
next‑generation energy transition platform: The proposed transaction brings together SAF, green methanol, renewable products, environmental attribute monetization, and advanced energy infrastructure into
a single, globally scalable platform.
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•
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Integrated fuels,
infrastructure, and environmental markets: The combined company is expected to link low‑carbon fuel production with carbon credits and related instruments, long‑term offtake commercialization, and
infrastructure development.
|
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•
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Supports customer
decarbonization strategies: By combining scalable low‑carbon fuels with environmental attribute monetization, the platform helps airlines and corporate customers address regulatory and sustainability
requirements with greater flexibility.
|
HOUSTON, Texas, and CALGARY, Alberta — April 14, 2026 — XCF Global, Inc. (Nasdaq: SAFX) (“XCF”), a key player in
decarbonizing the aviation industry through sustainable aviation fuel (“SAF”), and DevvStream Corp. (NASDAQ: DEVS) (“DevvStream”), a leading carbon management and environmental-asset monetization firm, today announced the
execution of a definitive Business Combination Agreement with Southern Energy Renewables Inc. (“Southern”), an important next milestone in the three parties’ previously announced initiative to establish a combined energy
transition platform designed to develop and scale sustainable aviation fuel (“SAF”), green methanol, renewable products, and next-generation low-carbon energy infrastructure, while embedding environmental attribute
monetization across the value chain. This platform will be able to compete with China and the world on providing fuels and other products without subsidies. The transaction remains subject to customary closing conditions as
well as the other terms, closing conditions and termination events (including failure to timely receive the applicable fairness opinions) set forth in the Business Combination Agreement.
The combined company is being formed with the objective of building a multi-asset, globally scalable alternative energy
platform. The platform is expected to integrate low-carbon fuels, including SAF, methanol, renewable products, and methanol-to-jet fuel pathways; environmental attribute monetization, including carbon credits and related
instruments; advanced energy systems, including small modular nuclear reactors (“SMRs”) to power fuel production and AI data centers; and infrastructure development together with long-term offtake commercialization.
The parties believe the platform has the potential to achieve substantial scale and has significant long-term growth
potential across fuel production, infrastructure and environmental markets.
Transaction Structure
The transaction will be executed through a series of mergers and restructuring steps. DevvStream will domesticate from
Alberta to Delaware prior to closing. XCF will acquire 100% of DevvStream and Southern through merger subsidiaries, and DevvStream and Southern will each survive as wholly owned subsidiaries of XCF. Existing shareholders of
DevvStream and Southern will receive shares of XCF common stock.
Following closing, ownership of the combined company is expected to be approximately 66.7% for existing XCF shareholders,
23.3% for Southern shareholders, and 10.0% for DevvStream shareholders.
Capital Formation and Infrastructure Investment
As part of the transaction, XCF has been investing ~$10 million into the buildout and conversion of its New Rise Reno
facility to support SAF production and blending capacity. The platform is designed to support large-scale fuel production and commercialization, including long-term offtake agreements. Southern is also expected to pursue up
to $400 million in bond financing to support infrastructure expansion.
The combined company is also targeting (and the transaction is conditioned upon the achievement of) key operational
milestones, including annualized fuel-related revenues exceeding $1 billion, minimum annualized EBITDA of $100 million.
Strategic Rationale
The combination brings together complementary capabilities across the energy and sustainability value chain. DevvStream
contributes environmental asset development, carbon credit generation and monetization capabilities. Southern contributes product diversification, technology development, and clean end products that compete with traditional
end products. XCF contributes platform-level capital markets access and an alternative energy investment strategy. For customers, this integrated platform is designed to expand access to lower-carbon, non-fossil-based fuel
solutions while providing greater flexibility in how emissions reductions are achieved and verified, helping airlines and corporate customers meet regulatory, compliance, and decarbonization objectives across diverse markets
and feedstock pathways.
Together, the parties believe the combined company will be positioned to accelerate deployment of renewable and
distributed energy infrastructure, scale the generation and monetization of environmental assets, and deliver integrated, financeable sustainability solutions to global markets.
Leadership Commentary
Chris Cooper, Chief Executive Officer of XCF Global, added, “Our goal is to build one of the most comprehensive
alternative energy platforms in the market—combining production, power, and monetization. This transaction accelerates that vision. For airlines and corporate customers, this means greater access to scalable SAF solutions,
paired with high-integrity environmental attributes that support compliance, reporting, and long-term decarbonization goals across diverse markets”
Sunny Trinh, Chief Executive Officer of DevvStream, commented, “This transaction establishes a platform with the scale,
integration, and ambition to compete globally in the energy transition. We are aligning infrastructure, fuels, and environmental markets into a single, scalable business model.”
Jay Patel, Chief Executive Officer of Southern Energy Renewables, commented, “Southern’s ability to bring the next
generation of technology and projects to help provide clean products without the need of government subsidies is a true gamer changer. Together we plan to bring energy independence and support the domestic supply chain with
a diversified product portfolio. The great thing about this platform is that we will be able to compete with China and the rest of the world; too long has China been able to set the benchmark products used worldwide.”
Approvals and Closing Conditions
The transaction is subject to shareholder approvals, SEC registration statement effectiveness on Form S-4, stock exchange
approvals including Nasdaq listing, completion of financing, plant conversion and commercial milestones and fairness opinions.
About XCF Global, Inc.
XCF Global, Inc. (“XCF”) (Nasdaq: SAFX) is an emerging sustainable aviation fuel company dedicated to accelerating the
aviation industry’s transition to net-zero emissions. Our flagship facility, New Rise Reno, has a permitted nameplate production capacity of 38 million gallons per year, positioning XCF as an early mover among large-scale
SAF producers in North America.
XCF is working to advance a pipeline of potential expansion opportunities in Nevada, North Carolina, and Florida, and to
build partnerships across the energy and transportation sectors to scale SAF globally. XCF is listed on the Nasdaq Capital Market and trades under the ticker, SAFX. To learn more go to XCF.Global
About DevvStream
DevvStream (Nasdaq: DEVS) is a carbon management company focused on the development, investment, and sale of environmental
assets worldwide, including carbon credits and renewable energy certificates.
About Southern Energy Renewables
Southern Energy Renewables Inc. is a U.S.-based clean fuels, chemicals and products developer focused on advancing
large-scale biomass-to-fuels projects. These projects are designed to produce carbon-negative SAF and green methanol, supported by integrated carbon capture and sequestration.
Additional Information and Where to Find It
In connection with the proposed business combination transaction among XCF, DevvStream and Southern, XCF will prepare and
file relevant materials with the Securities and Exchange Commission (the “SEC”), including a registration statement on Form S-4 that will contain preliminary proxy statements of DevvStream and XCF that also constitutes a
prospectus of XCF (the “Proxy Statements/Prospectus”). A definitive proxy statement is expected to be mailed to stockholders of DevvStream and XCF as of a record date to be established for voting on the proposed business
combination transaction and other matters as described in the Proxy Statements/Prospectus. DevvStream, XCF and Southern may also file other documents with the SEC and Canadian securities regulatory authorities regarding the
proposed transaction. This communication is not a substitute for any proxy statement, registration statement or prospectus, or any other document that DevvStream and Southern (as applicable) may file with the SEC or Canadian
securities regulatory authorities in connection with the proposed transaction. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, INVESTORS AND SECURITY HOLDERS OF DEVVSTREAM ARE URGED TO READ CAREFULLY AND IN THEIR ENTIRETY
THE PROXY STATEMENTS/PROSPECTUS WHEN IT BECOMES AVAILABLE AND ANY OTHER RELEVANT DOCUMENTS THAT ARE FILED OR WILL BE FILED BY DEVVSTREAM OR SOUTHERN WITH THE SEC OR CANADIAN SECURITIES REGULATORY AUTHORITIES, AS WELL AS ANY
AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS, IN CONNECTION WITH THE PROPOSED TRANSACTION, WHEN THEY BECOME AVAILABLE BECAUSE THESE DOCUMENTS CONTAIN OR WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND
RELATED MATTERS. DevvStream’s investors and security holders will be able to obtain free copies of the Proxy Statement/Prospectus (when they become available), as well as other filings containing important information about
DevvStream, Southern, and other parties to the proposed transaction, without charge through the website maintained by the SEC at www.sec.gov. Copies of the
documents filed with the SEC by (i) XCF will be available free of charge under the tab “Financials” on the “Investors” page of the XCF’s website at https://xcf.global/investor-relations/financials/sec-filings/
or by contacting the XCF’s Investor Relations Department at [email protected] and (ii) DevvStream will be available free of charge under the tab “Financials” on the “Investor Relations” page of DevvStream’s website at
www.devvstream.com/investors/ or by contacting DevvStream’s Investor Relations Department at [email protected]
.
Participants in the Solicitation
DevvStream, Southern, XCF, EEME and their respective directors and certain of their respective executive officers and
employees may be deemed to be participants in the solicitation of proxies from DevvStream’s and XCF’s stockholders in connection with the proposed transaction. Information regarding directors and executive officers of (i)
XCF is contained in a Current Report on Form 8-K/A, filed with the SEC on October 31, 2025, its Annual Report on Form 10-K for the year ended December 31, 2025, filed with the SEC on March 31, 2026, and in other documents
subsequently filed with the SEC and (ii) DevvStream is contained in DevvStream’s proxy statement for its 2025 annual meeting of stockholders, filed with the SEC on November 18, 2025 and in other documents subsequently filed
with the SEC. Additional information regarding the participants in the proxy solicitations and a description of their direct or indirect interests, by security holdings or otherwise, will be contained in the Proxy
Statement/Prospectus and other relevant materials filed with the SEC (when they become available). These documents can be obtained free of charge from the sources indicated above.
No Offer or Solicitation
This press release is for informational purposes only and is not intended to and does not constitute an offer to sell or
the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any offer, solicitation or sale of securities in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the
Securities Act of 1933, as amended.
Cautionary Note Regarding Forward-Looking Statements
This press release contains “forward-looking” statements within the meaning of Section 27A of the Securities Act of 1933,
as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, that involve substantial risks and uncertainties, including statements regarding the proposed transactions contemplated by the business
combination agreement, the anticipated structure, timing and conditions of the proposed transaction, the anticipated completion of the plant conversion, the achievement of specified financial and operational milestones
(including annualized blended fuel product revenues in excess of $1.0 billion and minimum annualized EBITDA of $100 million), the anticipated issuance of state-supported bonds by Southern, the valuation the parties are
aiming to achieve. All statements, other than statements of historical facts, are forward-looking statements, including: statements regarding the expected timing, structure and terms of the proposed transaction; the ability
of the parties to complete the proposed transaction considering the various closing conditions; the expected benefits of the proposed transaction; legal, economic, and regulatory conditions; and any assumptions underlying
any of the foregoing. Forward-looking statements concern future circumstances and results and other statements that are not historical facts and are sometimes identified by the words “aim,” “may,” “will,” “should,”
“potential,” “intend,” “expect,” “endeavor,” “seek,” “anticipate,” “estimate,” “overestimate,” “underestimate,” “believe,” “plan,” “could,” “would,” “project,” “predict,” “continue,” “target,” “objective,” “goal,”
“designed,” or the negatives of these words or other similar terms or expressions that concern XCF’s, DevvStream’s, or Southern’s expectations, strategy, priorities, plans, or intentions. Forward-looking statements are based
upon current plans, estimates, expectations, and assumptions that are subject to risks, uncertainties, and assumptions. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove
incorrect, actual results may differ materially from those expressed or implied by such forward-looking statements.
We can give no assurance that such plans, estimates, or expectations will be achieved, and therefore, actual results may
differ materially from any plans, estimates, or expectations in such forward-looking statements.
Forward-looking statements are based on current expectations, estimates, assumptions and projections and involve known and
unknown risks and uncertainties that may cause actual results, developments or outcomes to differ materially from those expressed or implied by such statements. Important factors that could cause actual results, developments
or outcomes to differ materially include, among others: (1) changes in domestic and foreign business, market, financial, political, regulatory and legal conditions; (2) the risk that the plant conversion is delayed, not
completed on the anticipated timeline, or requires additional capital beyond current expectations; (3) the risk that XCF is unable to achieve the specified annualized revenue and EBITDA thresholds, which depend in
significant part on XCF’s business performance, operating results, market demand, execution capabilities, and other factors; (4) the risk that Southern does not receive authorization to issue up to $400 million of bonds,
that such bonds are delayed, issued on less favorable terms, or not issued at all; (5) the risk that XCF is unable to obtain or maintain compliance with applicable Nasdaq continued listing standards, including regaining
compliance with $1.00 minimum bid price requirement, which could result in delisting if compliance is not regained within applicable cure periods; (6) the inability to satisfy or waive the closing conditions contemplated by
the business combination agreement; (7) the occurrence of events, changes or other circumstances that could give rise to the termination of the business combination agreement, or that could result in disputes or litigation
relating to the interpretation, enforceability or performance of the business combination agreement; (8) the outcome of any legal proceedings that may be instituted against XCF, DEVS, Southern, EEME or their respective
affiliates, which could be costly, time-consuming, divert management attention and adversely affect liquidity or financial condition; (9) uncertainty with respect to the scope, timing or completion of due diligence by any
party and each party’s satisfaction therewith; (10) uncertainty regarding valuations, capital structure, financing arrangements, equity ownership, or the allocation of economic interests contemplated by the business
combination agreement, including the risk that, in the event the proposed transaction closes, the parties may never achieve their aim of creating a $3.0 billion combined enterprise (as of the date hereof this statement only
represents an objective that the parties intend to achieve on a future date and such objective has not in the past and may never in the future be achieved); (11) changes to the structure, timing or terms of any proposed
transaction that may be required or deemed appropriate as a result of applicable laws, regulations, accounting considerations, stock exchange requirements or regulatory guidance; (12) the risk that required regulatory,
governmental, stock exchange or shareholder approvals are not obtained, are delayed or are subject to conditions that could adversely affect the parties or the expected benefits of any contemplated transaction; (13) the risk
that the announcement of the business combination agreement or the pursuit of the contemplated transactions disrupts current plans, operations or relationships of XCF, DEVS or Southern; (14) the risk that anticipated
benefits of any contemplated transaction are not realized due to competition, execution challenges, market conditions, or the inability to grow and manage operations profitably; (15) costs, expenses and management
distraction associated with the potential litigation and any contemplated transactions; (16) changes in applicable laws, regulations or enforcement priorities, including extensive regulation and compliance obligations
applicable to the parties’ businesses; and (17) other economic, business, competitive, operational or financial factors beyond management’s control, including those set forth in (i) XCF’s filings with the SEC, including the
final proxy statement/prospectus relating to the Business Combination filed with the SEC on February 6, 2025, this Press Release and other filings XCF made or will make with the SEC in the future and (ii) DevvStream’s Form
10-K for the fiscal year ended July 31, 2025, filed with the SEC on November 6, 2025, and subsequent reports filed with SEC and Canadian securities regulatory authorities available on DevvStream’s profile at
www.sedarplus.ca.
Although the business combination agreement is binding on the parties, it does not obligate the parties to consummate the
proposed transaction. The consummation of the proposed transaction remains subject to the satisfaction or waiver of applicable closing conditions, and the business combination agreement may be terminated in accordance with
its terms. There can be no assurance that the proposed transaction will be consummated on the terms described herein or at all. Investors are cautioned not to place undue reliance on these forward-looking statements, which
speak only as of the date hereof and are not guarantees of future performance or outcomes.
Any forward-looking statements speak only as of the date of this press release. Neither DevvStream, XCF, Southern or EEME
undertakes any obligation to update any forward-looking statements, whether as a result of new information or developments, future events, or otherwise, except as required by law. Neither future distribution of this press
release nor the continued availability of this press release in archive form on DevvStream’s website at www.devvstream.com/investors/ or XCF’s website at www.xcf.global/investor-relations should be deemed to constitute an
update or re-affirmation of these statements as of any future date.
Investor Relations Contact
DevvStream: [email protected]
XCF: [email protected]
Southern: [email protected]